The Marrying Man

Four years after he pushed same-sex marriage forward in the national debate, Gavin Newsom is waiting for his answer in the California supreme court. So are we.

BY Sue Rochman

May 14 2008 12:00 AM ET

Winter of Love

The marriages began on the morning of February 12, 2004, with lesbian icons Del Martin and Phyllis Lyon taking their vows. Within hours the news had spread citywide: Get to City Hall. The media flocked. So did the couples. In the rain, into the night, there they were: couples waiting in line for their turn to marry. The opposition filed lawsuits. In quick succession two superior court judges ruled that the marriages could continue. The couples kept coming. It went on for 29 days. Then at 2:33 p.m. on March 11 it all came to a crushing end when the California supreme court ordered the city to immediately stop marrying same-sex couples while it decided whether the city had the authority to disregard state marriage laws. Couples who had expected to leave City Hall happily married instead left in tears.

In retrospect, says Newsom, “No one could have predicted how big it would become.” It was never envisioned, he continues, “that we’d marry 4,000 couples. What we thought is that we’d marry Phyllis and Del and force people to deal with marriage equality in the face of their 50-year relationship. We wanted to stick it to them, so to speak, to force them to look these two human beings with an incredible history in the face and say, ‘No, you’re not good enough, you’re not the same.’ And then we kept going.”

As the gay marriage bells rang in San Francisco, the right wing had a field day, and Newsom fell from rising star to political pariah. “It wasn’t just the other side that reacted negatively,” he says. “It was people who privately had no problem with it who were furious.… Some of the people I admire the most in this country just ran the other way and didn’t want anything to do with me. I was toxic.” Newsom is quick to add, “It was politics. That’s all. I get it.” But it’s clear it stung then, and still does.

How could it not? When Bush won reelection in 2004, the pundits were quick to say that the marriage licenses issued to gay men and lesbians in San Francisco; Multnomah Country, Ore.; Massachusetts; and elsewhere had swayed the election. That turned out to be a myth, argues Evan Wolfson, the founder and executive director of Freedom to Marry: “Research has shown that it actually didn’t have an effect.” But what it did stir up, he adds, was “a White House and a Republican Party mechanism with an antigay industry to consciously stoke this and to try to divide and polarize gay people and marriage.”

In August 2004 the supreme court nullified the marriages, ruling that Newsom did not have the authority to defy state law. A case involving the constitutionality of the law then wove its way though the courts, resulting in the oral arguments heard in the supreme court March 4. A couple of scenarios could result, legal experts say. The court could rule that the current law, which states that marriage can only be a union between a man and a woman, is unconstitutional. If that happens, says Geoff Kors, executive director of Equality California, the court could either declare that gays can now marry, or tell the legislature to find a way to implement its ruling, as the Massachusetts supreme judicial court did in 2003. Alternatively, the court could tell the legislature that California’s same-sex domestic partnerships must offer the exact same benefits as marriage, creating a scenario like the one that led the New Jersey legislature to pass its civil union law in 2006. Or, of course, the court could rule that the law is constitutional and that California will only allow marriages between a man and a woman.

As California’s gay advocacy groups await the court ruling, right-wing groups are attempting to place an initiative on the November ballot asking voters to approve a state constitutional amendment prohibiting marriages between gay and lesbian couples. By their very nature, constitutional amendments trump a court ruling. So there could be quite a battle ahead if the initiative makes the ballot and the court rules that the current state law is unconstitutional.

How that might affect presidential election campaigns is unclear, explains Ellen Andersen, associate professor of political science at Indiana University-Purdue University Indianapolis and author of Out of the Closets and Into the Courts. A California marriage battle could allow the presumptive Republican candidate, John McCain, “who opposes a federal ban but is for [the Defense of Marriage Act], to burnish conservative cred and pick up the position on activist judges.” It could also put Barack Obama or Hillary Clinton “in an interesting place” since “they’ve both said they’re against [same-sex] marriage.”

What is clear is that same-sex marriage ceremonies have moved the once-radical concept of civil unions into the mainstream. Both Clinton and Obama support civil unions, while John McCain has walked a fine line, not overtly stating his support of unions yet acknowledging he would not prevent states from allowing them. Although Newsom says he admires and respects both Clinton and Obama, he takes issue with their position that there is no difference between civil unions and marriage. To him, denying same-sex marriage is discrimination, period. “There is nothing in the Constitution,” he says, “that denies people the right to live out their lives, regardless of their race, ethnicity, or sexual orientation.”

Tags: Politics

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