Marriage of Inconvenience

Is San Francisco's push for gay marriage good for the cause of gay rights?

Mon Feb. 23, 2004 1:00 AM PST

The dispute over gay marriage took a fresh twist over the weekend as California's attorney general Bill Lockyer, at the urging of Gov. Arnold Schwarzenegger, announced on Saturday that he would ask a court to stop San Francisco from granting marriage licenses to same-sex couples. This was prompted in part by a judge's decision on Friday not to impose a restraining order that would have halted the city's weeklong stream of (now more than 3,000) same-sex weddings.

Said the governor:

"[I]n San Francisco the courts are dropping the ball. It's time for the city to stop traveling down this dangerous path of ignoring the rule of law. That's my message to San Francisco."

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It's generally assumed that what's happening in San Francisco is good for the cause of gay rights. That was certainly the idea. The Los Angeles Times today takes a look at San Francisco City Hall's strategy.

Gay marriage had been debated in the abstract, allowing opponents to depict it as dangerous, [San Francisco Mayor Gavin Newsom] argued. What the legal strategy needed was real couples to place before the courts. The plan should be to marry first and then fight the legal battle. ...

"I think the parade of couples on TV and in the newspapers and magazines is what is going to change the public attitude about marriage of same-sex couples," [Jon W. Davidson, senior counsel at Lambda Legal, the nation's largest lesbian and gay legal advocacy group said]. "That is what it is going to take. Before, this was an abstract issue."

Conservative groups opposing gay marriage argue that state law does not allow same-sex weddings, and that San Francisco has no right to operate outside the law. They want an immediate court order blocking more marriages, but judges have put off a hearing on the issue until March 29

Gay rights advocates say the more important question is whether laws, including Proposition 22, a popular initiative forbidding same-sex marriages that passed, 61 to 39 percent, in 2000, violate the California Constitution's ban on discrimination.

To win, gay rights advocates have to persuade the California Supreme Court to invalidate the state's family law, which limits marriage to "a man and a woman," which won't be easy.

Now, other states are getting in on the act. A county clerk in New Mexico issued marriage licenses Friday to at least 15 gay couples after consulting with the county attorney, who said state law doesn't explicitly ban same-sex marriage.

Same-sex marriage is shaping up to be a political football in this year's presidential campaign, and it's unclear whether Newsom's decision to force the issue will help or hurt Democrats Some worry that by championing the issue, Democrats risk turning off moderate voters. Joe Tuman, a professor of political and legal communications at San Francisco State, told the Contra Costa Times last week: "Republicans who want to appeal to their core conservative base will say: 'This is what is wrong with the Democrats." John Kerry, the likely Democratic nominee, has tried to steer clear of controversy by supporting civil unions but not same-sex marriage.

Another important question is whether forcing the issue helps the cause of gay rights or, by inciting conservatives to retaliate, hurts it. George W. Bush is staunchly opposed to gay marriage and is of course considering a constitutional ban against it. On Wednesday he professed himself troubled by the San Francisco weddings:

"I have watched carefully what's happening in San Francisco, where licenses were being issued, even though the law states otherwise. I have consistently stated that I'll support law to protect marriage between a man and a woman. Obviously these events are influencing my decision."

Rep. Barney Frank of Massachusetts, an openly gay congressman, expressed regret over Newsom’s move. "I was sorry to see the San Francisco thing go forward." In an interview with The Associated Press, Frank expressed concern that the image of lawlessness and civil disobedience in San Francisco would lead some in Congress to support a federal constitutional amendment banning gay marriage, and he said he had hoped Massachusetts' Supreme Judicial Court decision upholding the right of same-sex couples to marry would serve as a national model for the legalization of gay marriage. "When you're in a real struggle, San Francisco making a symbolic point becomes a diversion," he said.

Peter Schrag of the Sacramento Bee says Newsom may have "given Bush a gift":

Polls show that while Americans oppose gay marriage, they also worry about the federal government's meddling with the sort of constitutional gay marriage ban that Bush has been toying with. But just when Bush's support and his poll standings are shrinking, here come San Francisco's city-county sanctioned gay marriages - almost certain to be declared invalid anyway - to rouse Bush's base. ...

Clinton learned painfully that wading into the gay front of the culture wars in his first days in office is not a good way to begin. Maybe Newsom has no wider political ambitions. But just as Bush, fearing a weakening political base, is working overtime to inflame the cultural right, couldn't Newsom have done his fellow Democrats a favor and waited a year before adding fuel to the fire?

Columnist Debra J. Saunders writes in the San Francisco Chronicle that Newsom went about this the wrong way:

I believe in marriage and equal rights for gay people. I enjoy a political crusade when it's infectious with joy. I look forward to the day when California legalizes same-sex marriage. That said, Mayor Gavin Newsom was wrong to authorize same-sex marriage applications last week. A mayor should show more respect for the law. ...

Today, Newsom essentially is saying phooey to the 4.6 million voters who in 2000 voted for Proposition 22, the state initiative that clearly stated, "Only marriage between a man and a woman is valid or recognized in California. ...

If a California court rules to legalize same- sex marriage, it will only tell these people that what they believe doesn't count. ...

Who knows? Advocates could win same-sex marriage through court fiat, and at the same time lose support from a public that otherwise could be wooed over time.

Andrew Sullivan, conservative, pro-gay rights blogger, agrees that leaders need to have more legal discretion if they want to make durable gains on same-sex marriage. He describes what he thinks Newsom should have done:

The proper way for Newsom and others to have made a symbolic showing on this issue while conforming to the law would have been for thousands of gay/lesbian applicants to have appeared day after day at his office seeking marriage licenses, and for him to have publicly and reluctantly denied their individual requests. This would have three immediate results. First, enormous public relations boost for the movement in question. Second, would have created grounds for suit in state courts under the state constitution's equal protection clause, which is the proper forum for deciding if the statute in question is unconstitutional. Third, it would create an enormous disruption of other governmental business, thereby making the protest have a practical impact.

But others are more optimistic. The Los Angeles Times reports that even though experts who follow the California Supreme Court have said it would be less likely than its Massachusetts counterpart to approve gay marriages, "gay rights lawyers hope that the justices, who are based in San Francisco, are sympathetic because they have a lot of personal exposure to gays and lesbians in the city and probably on their staffs."

Hence, gay rights lawyers believe that "California may prove to be an ideal test case for their movement." The paper quotes Kate Kendell, executive director of the National Center for Lesbian Rights as saying:

"I believe [that] with the benefits of five years' hindsight, we will view this as a watershed moment in lesbian and gay couples achieving full equality."

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