By Hillel Aron
By Joseph Tsidulko
By Patrick Range McDonald
By David Futch
By Hillel Aron
By Dennis Romero
By Jill Stewart
By Dennis Romero
AT 4:46 P.M. on Monday, an anxious Paul Waters stands on the steps of the Beverly Hills courthouse, waiting for news. Inside, his friends Robin Tyler and Diane Olson are on the verge of making history. Both the city of Beverly Hills and Los Angeles County have agreed to keep the courthouse open until 5:01 to grant Tyler and Olson a marriage license — which would make them the first same-sex couple to be legally wed in Los Angeles County. That is, if nothing goes wrong.
(Click to enlarge)
(Click to enlarge)
First couple: Diane Olson turns away from a blizzard of cameras to give a tight hug to Robin Tyler, as attorney Gloria Allred looks on.
“The Fundies have 15 minutes left,” Waters says, with a mixture of glee and apprehension.
He’s referring to efforts of religious conservative groups to get a last-second injunction from the California Supreme Court — one that would stay gay marriage until after November, when California voters will decide whether or not to enact a constitutional amendment defining marriage being between a man and a woman. Pollsters predict a close vote. And indeed, if the presence of at least a dozen “Abomination!”-shouting gay marriage protesters at the wedding is any indication, it’s going to be quite a fight.
On this day, however, it looks as if gay advocates will have their victory.
As the minutes pass in quiet tension, a voice suddenly announces over a loudspeaker, “They’ve got it!” — and the crowd of several hundred alongside Waters erupts.
Seconds later, Tyler, Olson and their lawyer, Gloria Allred, emerge triumphant from the courthouse to the tune of “Here Comes the Bride.” All three are dressed in cream-colored suits; they walk hand in hand in hand, clutching a marriage license between them. (“She’s the other woman,” Tyler would later joke of Allred.)
Gay marriage is officially legal in California.
Tyler and Olson, along with another pair, Troy Perry and Phillip De Bliek, were the first same-sex couples to sue for the right to marry in California. On Valentine’s Day in 2004, hours before San Francisco mayor Gavin Newsom temporarily legalized gay marriage in his city, Tyler and Olson, Perry and De Bliek, and Allred stood on these same Beverly Hills steps and announced their intention to sue L.A. County for the right to marry.
Four and half years later, Tyler stands victorious — and to think, it might have even happened sooner. Both Tyler and Perry had considered suing as far back as 2003, but they were contacted by Democratic leaders and gay advocates and told to “wait until the time was right.”
Tyler and Perry eventually stopped listening, and now, they are both legally married to their partners.
“I sued because my union, AFTRA, would not give my partner medical insurance after I retire because we weren’t married,” Tyler says. “Our lawsuit wasn’t a reaction to Mayor Newsom marrying couples. I was fed up with the discrimination by my union.”
But in the aftermath of the California Supreme Court victory, as many gay couples across the country have become emboldened to start fighting the same issues as Tyler, a similar holding pattern is emerging in gay advocacy circles. GLAAD, Lambda Legal and several other prominent gay-rights organizations have been circulating a pamphlet called “Make Change, Not Lawsuits.”
The message in brief: No matter what you do, don’t sue to be married.
“We need to be strategic in how we proceed,” says Jon Davidson, legal director for Lambda Legal. “We’ve just fought a major battle; now is not the time for more lawsuits.”
Davidson says that to lose a legal battle now could add years to the struggle to achieve marriage equality. This begs the question: With all the momentum currently generated by the California Supreme Court’s decision, when exactly is the time to sue?
After all, the atmosphere in California didn’t seem especially propitious for victory in 2004, when the lawsuits were filed. Proposition 22, the California ballot amendment that defined marriage as being between a man and a woman, had passed by an overwhelming margin four years earlier. The Supreme Court was stocked with Republican appointees, and gay marriage bans were in the process of being erected in state legislatures across the country.
Troy Perry says the phone calls he received back in 2003, discouraging him from suing in California, were “absolutely about the election” facing John Kerry. Now, the activists face yet another “classic dilemma,” says longtime Democratic strategist Darry Sragow. “The California Supreme Court decision was a tremendous victory, and the question now is how hard, how fast and how adversarial should they be in pushing from here on out. Because the last thing you want to do is provoke some incredible backlash that gets the ballot initiative passed or John McCain elected.”
And that may be the unspoken truth behind the calls for abstinence when it comes to litigation. With the religious right lukewarm about John McCain, the prospect of a gay marriage lawsuit popping up in a swing state like Pennsylvania or Ohio could energize indifferent Republicans and hurt Obama.
“If I were a Democratic player at the national level,” says Sragow, “I would definitely be speaking to gay advocates and saying, ‘Please think through what you’re going to do next.’”
SO DOES THAT MEAN GAY ADVOCATES, like Lambda, are playing election politics on behalf of Barack Obama’s candidacy?
A Clinton-era law, DOMA states that the federal government isn’t allowed to recognize same-sex marriages performed at home or abroad, and that no individual state can be forced into recognizing these marriages. In other words, Mississippi has no federal obligation to recognize gay marriages performed in California, even if the married couples are residents of Mississippi.
This provision is especially important. Were Obama to follow up on his stance and have the law repealed, gay couples could sue to have their California marriages recognized in their home states, without fearing their case would move to the U.S. Supreme Court — where they could easily lose.
“Getting rid of DOMA is one of our top priorities,” Davidson says. “Lambda is a nonpartisan group, so we don’t favor one candidate over the other, but I would encourage people to think about all the repercussions of their actions before choosing to sue.”
Davidson’s implication, of course, is that “President Obama” may be the best chance for gay-rights advocates to get rid of DOMA anytime in the near future.
Miki Jackson agrees with Davidson to an extent, but says, if there are ways to capitalize on the California decision now, sacrificing them to aid an Obama presidential run is probably misguided. If Obama is elected, “He’ll have a raging war to deal with and a crumbling economy,” she says. “His heart may be in the right place, but if I were his adviser, I would tell him not to put gay marriage at the top of the list.”
Tyler agrees: “Our (GLTB) community should not get excited [about Obama] yet,” she says. “The ‘change’ Obama talks about does not happen from the top down, it happens from the ground up .... We need to challenge the Democrats rather than just accept a pat on the head. For 35 years we’ve been told to suffer so the party can prosper. We’re done waiting.”
That said, even Tyler doesn’t think couples should take their cases to the Supreme Court, saying, “This isn’t the time to pursue a federal lawsuit.”
Michael Maroko, a member of Robin Tyler’s legal team, agrees, and warns that things are different from how they were in California in 2004. “Federally, the climate isn’t there yet,” he says. “The makeup of the Supreme Court isn’t such that a lawsuit would have much of a chance.”
However, Moroko doesn’t think all legal maneuvering should be out of the question. “Lawsuits should be considered carefully, on a state-by-state basis.”
That’s exactly what Davidson and other gay advocates say they are working on now. A gay-marriage suit already filed in Connecticut is working its way through the court system, and last summer in Iowa, Polk County Judge Robert Hanson ruled that the state’s 1998 Defense of Marriage Act was unconstitutional — a decision that legalized gay marriage in the heartland for four hours, before Hanson stayed his ruling, pending an appeal to the state Supreme Court. Iowa is set to become the next major battleground in the gay-marriage struggle.
As for bringing suits in other potentially gay-friendly states: “We’re asking that people consult with us first,” Davidson says.
Gay-rights activist Jackson generally agrees with Lambda’s stance. “You have to mix pragmatism with idealism,” she says. But, she cautions, sooner or later, risks will need to be taken if gays expect to achieve full marriage equality. “You can’t always have social change and consensus. A lot of people are rightly nervous about taking our case to the federal courts, but at the same time, you don’t want a roomful of wonks paralyzing the movement. We can’t afford to wind up sitting around the negotiating table forever.”
Tyler puts it more succinctly: “Power is never given. It has to be taken.”