Marriage: Losing for Winning

by MARK GABRISH CONLAN, Editor

Copyright © 2007 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved

That was quite a roller-coaster ride the San Diego City Council went on over the first 2 1/2 weeks in September over whether San Diego would join every other major California city in supporting San Francisco’s lawsuit to declare California’s definition of marriage as between one man and one woman unconstitutional. First, Dennis Herrera, the city attorney of San Francisco — the city that started this in February 2004 by unilaterally deciding to marry same-sex couples in defiance of state law — spoke before the City Council on September 4 and urged them to join the suit. The Queer community had one unexpected ally at that meeting — Jim Madaffer, who’d never distinguished himself on Queer issues in the past — and one unexpected adversary.

Donna Frye, who’d made support of equal rights for the Queer community such a touchstone of her political career that the radical-Right publication News Notes (published and funded by San Diego Reader publisher Jim Holman) once “outed” her as a Lesbian, which she isn’t, stunned San Diego’s political cognoscenti with a surprise vote against the measure. Her concern wasn’t the case itself but the way she felt the public had been locked out of the process. Frye said she herself hadn’t known the vote was going to take place until less than a week before it did, and after Herrera assured her that the city had until September 26 to decide whether to join San Francisco’s case, she asked that the issue be delayed and given a full-dress public hearing with supporters and opponents each having more than 15 minutes to present their case to the Council.

“The other side was very happy,” Frye recalled, “and I made it clear, ‘Don’t be so happy. You’re not going to like my vote when this hearing happens.’” Indeed, when the issue came up again on September 18, Frye supplied the crucial fifth vote for San Diego to join the case. Queer activists were still concerned, however, because under San Diego’s new “strong-mayor” city charter, Mayor Jerry Sanders could hold it on his desk for two weeks and then veto it — and the Council wouldn’t have the chance to meet again in time to override.

Instead, Sanders sprung the biggest surprise of all on this issue when, just a day after the Council passed it, he announced he would sign it. Noting that he not only had many friends and relatives in the Queer community but his daughter Lisa is Lesbian -— something that had been an open secret in San Diego’s political world but which Sanders had never before acknowledged publicly — Sanders said, “In the end, I couldn’t look any of them in the face and tell them that their relationships, their very lives, were any less meaningful than the marriage I share with my wife, Rana.”

The political courage shown by Madaffer, Frye (at least once she, unlike John Kerry, had decided to be for it after she was against it) and especially Sanders is admirable, but the Queer community leadership’s dogged pursuit, not just for legal recognition of their relationships but for legal recognition with the M-word attached, is dangerous and threatens to leave Gay and Lesbian couples in this state with fewer legal rights, responsibilities and protections than they have now. The reason? The 900-pound gorilla in the marriage issue: the voters.

California’s current ban on same-sex marriage began as a piece of legislation in the 1970’s. Until then, the state’s lawmakers had considered it so obvious that marriage was between a man and a woman that they hadn’t bothered to define it that way in the California Family Code. When Gay couples in Minnesota and Illinois showed up at county clerks’ offices and demanded they be married because there was nothing in those states’ laws that defined marriage in specifically heterosexual terms, legislatures throughout the country rushed to close what then appeared to be a minor loophole — and Queer activists, then more concerned with issues like discrimination and law-enforcement entrapment, offered little resistance.

But in March 2000, as a reaction to litigation in other states aimed at opening marriage to same-sex couples, the radical Right put Proposition 22 on the California ballot. This measure simply stated, “Only marriage between a man and a woman is valid or recognized in California.” The initiative easily qualified for the ballot and passed overwhelmingly in March 2000 with 61.4 percent of the vote — and every state but one, Arizona, that has had a similar initiative on its ballot has also passed it, usually by similarly lopsided margins.

No doubt ruing their decision in 2000 to make Proposition 22 a simple initiative statute instead of a state constitutional amendment — which would have required more signatures to get on the ballot, though they actually got more than enough to have qualified it as a constitutional amendment if they’d started on that route — two separate radical-Right movements are circulating petitions to ban same-sex marriage once and for all. One, sponsored by Gail Knight (widow of the late Pete Knight, who wrote Proposition 22) and the California Family Council, affiliate of James Dobson’s group Focus on the Family, would write Proposition 22 into the state constitution but would preserve California’s landmark domestic partnership law by stating that it “shall not affect the rights, benefits and obligations conferred by California law on other domestic relationships.”

The other initiative, by former Assemblymember Larry Bowler, Randy Thomasson and his group Campaign for California’s Families, and their coalition group VoteYesMarriage.com, is a more far-reaching one that would write into the California constitution not only a ban on same-sex marriage but a provision that “neither the Legislature nor any court, government institution, government agency, initiative statute, local government, or government official shall … bestow statutory rights, incidents, or employee benefits of marriage to unmarried individuals.” In addition, the final version of this initiative contains definitions of the terms “man” and “woman” that would invalidate California’s landmark law allowing post-operative Transsexuals to marry in their new gender.

According to a Time/CNN poll taken shortly before the 2004 election, only 25 percent of all Americans support the right of same-sex partners to marry; 37 percent oppose any legal recognition of same-sex relationships at all; and 35 percent oppose same-sex marriage but are willing to support an alternative way of legally recognizing same-sex relationships (domestic partnerships or civil unions) and giving same-sex partners all or some of the rights of married people. Queer political strategists like to refer to that 35 percent as the “movable middle” in hopes that they can be “moved” into broadening their support for recognizing same-gender relationships into an endorsement of same-sex marriage.

Instead, the Queer community’s insistence on using the M-word has moved that “movable middle” solidly into the same camp as the religious Right. Anti-marriage initiatives have passed whether the states which voted for them went “red” or “blue” in the last two presidential elections and whether or not they also contained bans on civil unions or domestic partnerships. In the crucial “battleground state” of Ohio, Republicans used the anti-marriage initiative on the November 2004 ballot to mobilize their voters and help bring about the 60,000-vote majority that kept George W. Bush in the White House.

Despite the wishful thinking of marriage equality advocates, more recent polls suggest that American public opinion is actually hardening against relationship rights for Gay and Lesbian couples. A July 2007 poll from the Pew Research Foundation shows that, after a slight narrowing in 2005 and 2006, opposition to same-sex marriage in the U.S. has grown to 57 percent opposed, 32 percent in favor: the biggest majority against us since the 2004 election. What’s more, the Pew results suggest that the American public is turning against civil unions as well; where clear majorities in their 2005 and 2006 polls favored civil unions (53 to 40 percent in 2005 and 54 to 42 percent in 2006), this year’s result was 46 percent against civil unions and 45 percent in favor: a statistical tie.

The Pew people merely present these results without trying to interpret them, but it seems likely that the uncompromising position taken by the Queer community leadership that domestic partnerships and civil unions are “not enough” — that they’re comparable to the so-called “separate but equal” (in reality, separate and extremely unequal) conditions to which African-Americans were subjected between the 1890’s and 1960’s — and that marriage remains our ultimate goal are souring the American people on granting any rights to Queer couples. Ironically, it’s groups like the California Family Council who are offering a compromise on the issue — we agree that marriage is between a man and a woman, and they agree to leave our domestic partnerships alone — and our side which is rejecting it.

The timing of the California Supreme Court’s case couldn’t be worse for our community. The promoters of the anti-marriage initiatives are shooting for slots on either the June or November 2008 ballot, and the Supreme Court’s decision is expected some time in the spring of 2008. Right now both initiative campaigns are “on hold,” waiting for large donors to kick in the multi-million dollar budgets necessary to hire signature gatherers to get them on the ballot. But if the California Supreme Court rules the way the Massachusetts Supreme Court did — that the California constitution requires the state not only to grant same-sex couples the rights, privileges and responsibilities of marriage but the actual M-word itself — this will galvanize the radical Right into action and either or both anti-marriage initiatives may pass with such sweeping margins Proposition 22 will look close by comparison.

The best thing that could happen would be a court ruling along the lines of the ones in Vermont and New Jersey: the state has to grant comparable rights and responsibilities to same-sex couples seeking them but does not have to call it “marriage.” Then, if the Gail Knight/California Family Council initiative gets on the ballot, most voters will probably yawn because it will merely fix the status quo — marriage for opposite-sex couples and domestic partnerships for same-sex ones — into the California constitution. If the Bowler/Thomasson initiative gets on the ballot, we’ll have the chance to defeat it by presenting it as a mean-spirited attempt to deprive Gay and Lesbian Californians of the not-quite-marriage rights they already have (and Transgender people of the marriage rights they already have).

The irony is that the better we do in the courts, the worse we’re likely to fare at the ballot box. That’s a corner the American Left has painted itself into on issue after issue, notably abortion and reproductive freedom. In counting on the courts to overrule popular opinion in the name of abstract “rights,” we’ve adopted a fundamentally undemocratic strategy whose limitations have come back to haunt us — and, if we continue to close our minds to compromise on the marriage issue, may cost California’s registered domestic partners the rights our community worked so hard for so long to win them.