First published on August 19, 2004, in the Chicago Free Press.
Aug. 12, 2004, was a blockbuster gay news day. To recap briefly: In the morning the California Supreme Court ruled 7-0 that San Francisco Mayor Gavin Newsom lacked authority to issue marriage licenses to 4,000 same-sex couples this past spring.
In the afternoon New Jersey Gov. James McGreevey (D) announced "I am a gay American," said he had had an extramarital affair with a man which left him "vulnerable to rumors, false allegations and threats of disclosure," and so planned to resign in three months.
In the evening President George W. Bush appeared on "Larry King" and said it would be "great" if states want to provide legal recognition to same-sex couples. "That's up to states," Bush said. "If they want to provide legal protections for gays, that's great. That's fine."
Each of these deserves comment, but first notice the "meta-news" - the news about the news. In the 1970s there was little gay news. In the 1980s the only gay news was AIDS. But now we who wished for gay visibility are getting our wish in spades. Even the absence of gay issues at the Democratic convention was news. And it is not going to let up for decades.
Even though most of us demand the right to marry, it is hard to disagree with the California Supreme Court. Local officials cannot defy state policy. They can direct enforcement away from some laws (marijuana, commercial sex), but they cannot declare legal something that is illegal, and they lack authority to grant state entitlements.
They can justifiably break the law in token fashion to publicize an issue, as Newsom did, and as a deliberate act of civil disobedience to test the law, as Newsom did while filing suit against California's gay marriage ban. But they cannot on their own change state law.
Gratifyingly, the California court explicitly stated that its ruling did not touch the constitutionality of the California gay marriage ban. That case will not be decided for at least a year or two.
But the court's separate 5-2 vote to nullify Newsom's marriages suggests that at least two justices may already believe the state's ban on gay marriage may be unconstitutional so gay marriage will have vigorous representation in court deliberations. Some of the other five justices may well agree on the issue though not on Newsom's remedy. We need only two more for a majority.
McGreevey's coming out in the context of an extramarital affair and allegations of extortion threats or a sexual harassment suit does not send much of a message about gay pride, or perhaps pride only for married closet queens who give their partners government jobs for which they have no qualifications.
Still, it is perhaps a slight plus for people to know that there are gay government officials, and McGreevey is, at the moment, the highest ranking openly gay official. And to his credit his earlier closetedness did not lead him to don the breastplate of righteousness by being anti-gay. He did sign New Jersey's civil unions legislation.
The charges by partner Golan Cipel seem strained if not preposterous. Cipel reportedly claims that he was coerced, that McGreevey "forcibly performed oral sex on Mr. Cipel without his consent." How awful that must have been for him! But it is difficult - with a straight face - to imagine the scenario by which this would happen. And there were witnesses supposedly?
But McGreevey's integrity does not come off well either. He denied his sexual orientation throughout his career, marrying one woman he said he loved but who apparently divorced him - one wonders why - then marrying a second who he said loved him but does not say he loved. The second marriage was then a contrivance?
Bush's statement on CNN's "Larry King" show that it is fine that states can provide "legal protections for gays" should have stunned people. Had the media not already overdosed on gays that day, Bush's comment would have been major news. It is major news: The social conservative president thinks it is "great" that states are free to offer legal protections to gays. Or "great" for gays if they do. Or something.
Across America, religious right jaws dropped like William "Refrigerator" Perry on a bungee cord. No doubt the Jerry Falwells and James Dobsons gritted their teeth and muttered, "I guess he has to say stuff like that to placate those 'moderates' he needs to win."
Remember that the goal of the religious right is to keep gays invisible to the law. But granting partner benefits would require a state registry of gay couples and that would mean state recognition of gays as gays and gay partnerships as a legitimate entity.
And Bush must know that allowing state legislatures to extend partner benefits would collide with a Federal Marriage Amendment that prohibits any state supreme court from reading its own constitution so as to permit the granting of any "incidents of marriage" to gay couples. Bush is playing a risky game, trusting that neither moderates nor conservatives will see the contradiction and will believe whatever they hope.