Marriage is between one man and one woman: 30 states and the federal government have passed laws insisting that it's so--and on March 7, Californians will vote whether to join them. As a result--or, more accurately, because of the money, rhetoric, and time the American right wing has spent ringing alarums about same-sex marriage and forcing lesbian and gay organizations into a fight they didn't choose--my marriage to another woman will almost certainly be legally recognized in my lifetime.
A continent and climate away from California, the state of Vermont has just edged closer to that possibility than many of us had dared to hope. On December 20, 1999, in Baker v. State of Vermont, the Vermont Supreme Court insisted that its state legislature must offer same-sex couples every legal benefit and obligation of marriage--with or without the symbolically contentious "m" word. The court wrote that "legal protection and security for ... avowed commitment to an intimate and lasting human relationship is simply, when all is said and done, a recognition of our common humanity." Overnight, state politicians began debating not whether but how to best offer equality to lesbian and gay pairs.
Vermont, of course, is a tiny and peculiarly progressive state, with 300,000 fewer residents than the city of San Jose. Californiaincludes one-eighth of the nation and has long spawned a startling array of American evils and goods. What's on its way from the Golden State? How has marriage--an institution so many heterosexuals are fleeing--become the most prominent gay-rights battleground?
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Lesbian and gay organizations had repeatedly decided not to fight for marriage, seeing it as unwinnable--and perhaps as too conservative an issue for those with radical feminist or gay-liberationist roots. But marriage has long been an obsession of antigay activists. "Any time we have asked for anything by way of family recognition, no matter how small, [our opponents] would accuse of us of knocking apart marriage," says Evan Wolfson, marriage project director at Lambda Legal Defense and Education Fund. His first public appearance as a Lambda lawyer came in 1989, after New York City Mayor Ed Koch issued an executive order permitting city employees to seek bereavement leave if a domestic partner died. "I was on Crossfire against Pat Buchanan and Bill Donohue, the head of the Catholic League here in New York, and they were both screaming that bereavement leave--this crumb of recognition--is marriage." The repeated cry of "marriage" at the skimpiest gains persuaded many gay advocates that they might as well pursue exactly that.
The marriage battle got a boost when, in 1993, the Hawaii Supreme Court shocked observers (especially the plaintiffs in Baehr v. Lewin) by ruling that, under Hawaii's Equal Rights Amendment, the state could not deny the rights and obligations of civil marriage to same-sex couples--why should a woman be able to marry a man, but not a woman?--unless it had a compelling interest. Many legal observers believed that Hawaiian same-sex marriages were just a breath away, soon to be followed by 50 legal battles over whether those marriages would be recognized by other states and the federal government.
Scenting a new, postcommunist scapegoat for a rapidly changing social landscape, Gary Bauer's Family Research Council and the Mormon Church came up with the tactically brilliant Defense of Marriage Act (DOMA): Marriage is between one man and one woman. In 1996 the Gingrich congressional class passed it--and President Clinton quickly signed it--banning federal recognition of same-sex marriages, and a right-wing coalition pledged to take DOMA to every state legislature. The 1996, 1997, and 1998 debates make for entertaining reading: In South Dakota or Kentucky or Maine, speakers have used precisely the same words to attack precisely the same "gay agenda." My favorite moment in these debates is when some state rep invariably announces that, without DOMA, men will soon be marrying their German shepherds.
The jeremiads backfired. Even 10 years ago, judges laughed out of court any suggestion of same-sex marriage. But as Americans repeatedly heard "gay" and "marriage" in the same phrase--not from perverts who could be ignored, but from ramrod-straight crusaders and members of Congress--it began to sound less like an oxymoron than a reality. By November 1999, an NBC/Wall Street Journal poll discovered that two-thirds of Americans expected to see legally recognized same-sex marriage in this century. Many--including some who should know better--think it's already happened. According to The New York Times, Portuguese-born Alexandra Sousa tried in February 1999 to persuade a Newark immigration judge to extend her residency; otherwise, under current immigration law, Sousa would have had to leave her longtime partner and their eight-year-old child. Civil marriage would have opened the possibility of her obtaining American citizenship. And so the judge asked: Isn't there some state where you can get married?
No, Virginia, there is no American state in which same-sex couples can marry--not even California. In fact, in 1977 California's legislature passed a law that explicitly restricts its marriage licenses to heterosexual couples, an antigay effort signed by Jerry Brown. But given the state's recent gay-friendly actions--ranging from legal recognition of two-mom and two-dad families to a statewide (if somewhat toothless) domestic partnership registry--the right wing wasn't convinced that California courts would refuse to recognize other states' same-sex marriages, should any ever take place. And so when Republican state senator William J. "Pete" Knight was twice frustrated in his attempts to get the California legislature to pass a DOMA, he took the measure to the voters as Proposition 22.
California is "the most socially libertarian of any state," says The Sacramento Bee's deputy editorial page editor Mark Paul--and Californians are particularly sophisticated about lesbian and gay rights, with 85 percent saying they know someone who is lesbian or gay. That makes the DOMA campaign--both pro and con--quite different than it would be anywhere else in the country. In December, Stanford University family law professor Michael Wald issued a report showing that, according to all reputable psychological research, children do just as well with lesbian, gay, or heterosexual parents--but children with two moms or two dads would be better protected if their parents could marry. Perhaps only in California could that popular stealth missile of American politics--the save-the-children plea--be used against DOMA.
The pro-22 side thus must "raise alarms about the possibility of gay marriage without seeming to be antigay," says Paul. "And that's not an easy argument to make." Which may be why the pro-Knight campaign has scared up no prominent endorsers outside the Mormon and Catholic hierarchies.
The "No on Knight" campaign has an equally difficult argument to make: You don't have to be for same-sex marriage to be against Prop. 22. That's the narrow line walked by most of the campaign's impressive list of supporters: Al Gore and Bill Bradley, both California senators, and a parade of mayors, labor unions, and religious leaders. Californians, like most Americans, would vote against same-sex marriage if that were the question. And so the "No on Knight" campaign endlessly returns to three extramarital messages: "It's unfair. It's divisive. It's intrusive." Those ideas got a boost when Knight's son wrote a widely covered Los Angeles Times column saying that his father stopped speaking to him when he came out as gay. Follow-up stories revealed that Knight had skipped the funeral of his own brother, a gay man who had died of AIDS.
In November and December, California's respected Field poll found that 51 percent of potential voters said, when Prop. 22 was read to them, they'd vote in favor; 40 percent said they'd vote against. Those might look like pro-Knight numbers from far away, but California's initiative process is its own world. Local pollsters say that undecideds tend to vote no on California initiatives, since no is supposed to be safer, a vote for the status quo. Initiatives with no more than 51 percent support before the campaigns start tend to be defeated.
Of course, Californians may not want some stranger on the phone to think they're antigay and may vote differently once alone in the ballot booth. And whichever party has the more contentious primary--bringing out more voters--will tilt the vote one way or the other, since Democrats and independents lean against and Republicans lean for 22. Moreover, television and radio spots, careful district targeting, and door-knocking volunteers will all matter--as will money. And the money race is quite lopsided. The Protection of Marriage Committee (pro-22) had raised $4.9 million by January 1, while the No on Knight Committee had raised $2.1 million.
hat if California's DOMA passes? One gay-rights activist (who asked not to be named) says, "Who cares? It would just be the 31st DOMA law on the books. They're all going to be challenged anyway." But realistically, a yes vote on 22 would be chilling. DOMA laws have been used to challenge everything from domestic partnership statutes to lesbian moms' custody rights. And in propaganda terms, a right-wing victory would make events in Vermont look peculiar, not prophetic.
Ah, but if California voters reject DOMA--in a popular ballot vote, not through a committee procedure or a judicial decision--it would be "astounding," says Paula Ettelbrick, family policy director at the National Gay and Lesbian Task Force/Policy Institute. "It would question the attack on lesbian and gay couples. It would create the sense that the world is really changing, that we have changed the world."
And either way, the campaign itself--like the entire DOMA debate--has been a plus for gay rights. It has pushed the big Democratic names--vying for the gay vote--into denouncing DOMA, while the major Republicans have so far kept their mouths shut, trying to seem less rabid than during the kulturkampf years. More important, the campaign has been a chance to teach people about the vast legal effects of civil marriage. To most, marriage seems like a private, sacred matter--until a campaign like this one reveals the incredibly complex legal house that civil marriage law constructs around a couple. Few people think about the legal ramifications of saying "I do"--until they start to hear the (true) stories of the Pennsylvania woman who had to go to court before she was allowed to inscribe an epitaph on her dead partner's gravestone, or of the California man who, in a breakup after 42 years, was shut out of the house that was in his partner's name and can't go to divorce court to put things right. Few people have any idea that there are (according to a General Accounting Office study) 1,049 federal measures contingent on marital status; that even if a state offered the widest domestic partnership possible, DP'ed couples would still be unable to claim a dead spouse's federal pension, would have no immigration rights if one of the pair were a foreign citizen, could not count on holding a beloved's hand in the hospital if hit by a car while vacationing out of state. Americans may not want to apply the "m" word to same-sex pairs, but thanks to the right wing, they're starting to learn about--and recoil from--what happens when we're barred from legal recognition.
Vermont's top court showed great political acuity in instructing state legislators to craft a remedy for the injustice it diagnosed. The legislature's answer may become a national model, spreading by admiration rather than litigation--much as the Scandinavian countries' comprehensive registered partnership statutes, "marriage" in all but name, are being imitated throughout Europe. And once same-sex couples are legally recognized, how long before the name itself--marriage--seems only just?
When that day comes, I'll be sending thank-you notes not just to Lambda's Evan Wolfson, to the Hawaii case's originating attorney Dan Foley, and to Mary Bonauto of Gay & Lesbian Advocates & Defenders, who is co-counsel in the Vermont case--but also to Pete Knight, Pat Buchanan, Gary Bauer, and friends. I want them to know that, yes, we'd have chased after partnership rights--and maybe we'd have won a good number of them. But marriage? On a big issue like that, guys, we could never have gotten this far without you. ¤
