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I am of very mixed mind about this YouTube -- a bouncy, charming and catchy ditty about the "tiny minds" of some of our opponents. The song is about bigotry in general, and the creator of the video used the song to make his more specific point.

This is the Proposition H8 generation settling in somewhere between offensive and playful. On the one hand, I kind of like its breeziness about homophobia, which is the opposite of victimization -- certainly a major step forward for this generation. On the other hand, it's the sort of thing that gets all up in Maggie Gallagher's grill -- it's exactly what she loves to complain about.

On the third hand. . . it's the sort of thing that gets all up in Maggie's grill with some style. Unlike some of the snarling references to right wing bigotry by our spokespeople on the cable snooze shows, these kids really aren't worried that someone else's bigotry will turn them into simpering, cowering lumps of citizen-mush. Their self-respect is fully intact no matter what someone else thinks about their sexual orientation.

And the style is such a supreme contrast to the gloomy, ominous alarm of Maggie's Gathering Storm video -- which is still generating much-deserved parodies.

I would so much like the public debate to be high-toned and respectful. And much of it really is, as anyone who watched the Maine legislative debate today could see. I'd love to know if Maggie agrees about that. But a lot of public debate takes place in cultural niches that don't have any civility rules. These include, today, Miss America contests, the parking lots of Mormon temples, and now YouTube videos. I prefer the campy incivility of this video to the toxic innuendo of The Gathering Storm. But that's because I think people can live with campy incivility a lot more easily. And campy incivility is something you can grow out of. I don't think that's true of toxic innuendo.

There are many reasons for the increasing acceptance today of same-sex marriage among the American public, but one has received virtually none of the acclaim it deserves: the invention, in the late 1940s, of Adolph's Meat Tenderizer. The gay rights movement owes a lot to that little shaker.

Lloyd Rigler and Larry Deutsch were two ex-GIs who, after WWII, found each other -- as well as a restaurant in Los Angeles that served cheap but delicious meat. They got the chef to sell them the secret, and introduced the product with the chef's name. After making a big splash in L.A. and the west coast during the late 40s and early 50s, Adolph's Meat Tenderizer leaped onto the national stage in 1953 when Reader's Digest featured it in a consumer report. Sales skyrocketed to $20 million that year and kept going.

They kept the nature of their three decade relationship ambiguous, as convention dictated. But when Deutsch passed away in 1977, Rigler faced one of the most tangible forms of discrimination -- the economic kind. If they had been married, Rigler would have inherited the entire fortune, but since they weren't, it was subject to a 50% tax rate. Rather than accept that, Rigler let the money go to a charitable foundation named using a combined acronym from their initials - LEDLER. However, Rigler had some control over how the money would be used.

In the mid-1980s, Tom Coleman had a solid reputation among L.A.'s politicos, because of his connections with Governor Brown's office, his legal work with gay defendants, his persistence on local gay issues, and his work with the Police Commission on anti-gay discrimination. In 1985, the former L.A. City Attorney, Burt Pines suggested Tom meet with Rigler.

The two hit it off. Rigler was still steamed about the federal tax discrimination, but he was a cautious man when it came to gay issues. Tom's interest in moving the culture slowly toward acceptance of same-sex couples could not have been a better fit. More important, they were in sync on strategy. Both strongly believed that gay issues needed to be pursued as part of a larger agenda that included related issues for other groups. Rigler agreed to fund appropriate parts of Tom's work - a relationship that would last for the next two decades.

That included developing materials for a new class Tom had been asked to teach at the USC Law Center. Dean Lee Campbell had originally asked him to teach a course on gay rights, but Tom felt that would be too narrow a focus, and would appeal only to gay students - not the kind of approach he favored. Instead, he offered to develop and teach a course on the rights of unmarried couples - the first in the nation. California had two major Supreme Court cases related to that topic: the landmark palimony case of Marvin v. Marvin and City of Santa Barbara v. Adamson, recognizing that the right to form a family extended somewhat beyond the existing restrictions of blood, marriage or adoption.

At about the same time, the Municipal Elections Committee of Los Angeles was continuing to exercise its political muscle. L.A.'s 13th District included the increasingly gay area of Silverlake, and the two candidates for that office, incumbent Peggy Stevenson and challenger Mike Woo, had both been made aware of the domestic partnership ordinances in Berkeley and West Hollywood, and promised to do something similar in L.A. Woo won, and the day Woo was sworn in, Tom dropped by his new office to meet Woo's chief of staff, Larry Kaplan.

Tom suggested that Woo should not bring the proposal up immediately, but should take time to lay the political groundwork. San Francisco's failure to pave the way for its ordinance was still vivid in Tom's mind. Woo eventually agreed to convene a formal, high profile group to survey the issue, and established the Task Force on Family Diversity. Following up on the 1980 White House Conference on Families, the task force would examine how the notion of "family" had changed over many decades, particularly in the crucible of Los Angeles, which had its share of traditional families with two married parents and their children, as well as all the variations that existed, from step-parent and blended families, to childless couples to single-parent families to unmarried couples - which would obviously include same-sex couples. The question to be asked was how city policy affected all of those family forms with its conventional legal focus on families related by blood, marriage or adoption?

It is impossible to understate the importance of this for gay equality. Historically, gays had been viewed almost exclusively as sexual beings. What made them different from everyone else was their propensity to have sex with people of their own gender. Neither the criminal law nor social convention punished them for sexual orientation, per se; rather, they were outcasts because of their sexual activity. Getting rid of sodomy laws changed the formal rules, but did not change that cultural focus on homosexual sex. The closet was a social compromise allowing some degree of sexual liberty as long as a fiction of either heterosexual normality or, at the least, unmarried ambiguity were maintained. As the closet was being dismantled -- sometimes aggressively -- gays really did seem to be pushing their sex lives onto an unwilling heterosexual public.

The Task Force on Family Diversity sought to change the entire context of homosexuality from sex - always a highly charged social topic - to something more ordinary and, in fact, more mature: relationship. After all, in the normal course of a lifetime, sexual activity diminishes for some entirely pragmatic reasons, and like their heterosexual counterparts, homosexuals settle in to a more routine, less sexually charged life. Society's almost exclusive focus on the sex lives of homosexuals - "perverts" and "deviants" - left little room in the public imagination for what usually happened in homosexual people's lives.

Moreover, laws that excluded same-sex couples from the legal rights and responsibilities of family life actually reinforced the damaging, purely sexual notion of homosexuality. This had not been helped by the nearly universal association of the gay rights movement with the sexual revolution.

Both Tom and Lloyd Rigler saw gay rights - and experienced gay lives -- in the context of relationship. That also included sex, but it was not confined to it. They would need to wrestle the gay rights movement away from its origins in sexual liberty so the public could more easily see that sex was a vital part of the lives of lesbians and gay men, but it was not -- or did not need to be -- isolated from the rest of their human nature.

This would not be an easy sell either with gay activists or with the general public - who were, in the political arena, the primary target now. The Berkeley and West Hollywood domestic partnership ordinances were responses to a local political constituency. West Hollywood, in particular, had been incorporated as a city because of its much higher than average percentage of openly homosexual residents. L.A.'s Task Force had a more difficult - and far larger - political job. The Task Force would have to provide the background to show same-sex couples fit into social context that no culture had ever viewed them in before.

The White House Conference on Families, and the court cases had been helpful. Clearly, the notion of family was not a unified one, and L.A.'s demographics were a good case study for what family relationships looked like in Reagan-era America.

The LEDLER Foundation grants helped fund Tom's work as Special Consultant to the Task Force, with Christopher McCauley and Nora Baladerian as its co-chairs. The 37-member Task Force took two years to conduct public hearings, research projects, census studies, interviews and public outreach. Significantly, its membership included representatives from the religious community, as well as Republicans such as Frank Richiazzi, business representatives and law enforcement. In May of 1988, it released its final report, along with three volumes of supplemental material.

And the strategy worked. Later that year, Woo introduced the proposal as a recommendation of the Task Force, and with both political and reinforced cultural support for viewing same-sex couples in a new context, Los Angeles adopted its citywide domestic partnership ordinance with little fanfare or crossfire.

It is that hard political work that the judicial challenges to marriage laws have short-circuited. L.A.'s ordinance was passed five years before the court challenge in Hawaii set off the national firestorm over gay marriage. By that time, domestic partnership was well enough understaood in California that its legislature was already considering its first statewide domestic partnership bills. Those efforts finally succeeded in 1999 -- while the rest of the nation was still struggling to understand why gay people were bringing all these lawsuits, and didn't just settle down with someone of the opposite sex like everyone else.

By that time, Tom had lobbied the Hawaii legislature to offer domestic partnership as a compromise that would hold off a constitutional amendment; filed briefs in New York's highest court in Braschi v. Stahl Associates, a case similar to Adamson that would recognize family structures where the members were identified by their functional relationship to one another rather than just blood, marriage and adoption; argued another landmark case in California's Supreme Court on the scope of religious liberty and the rights of unmarried opposite-sex couples; and begun his work on the rights of single Americans.

His work, much of it funded by money that hadn't gone to the federal government because of Lloyd Rigler's refusal to accept a rule that treated the money of same-sex couples differently from the money of opposite-sex couples, gently forced the tectonic shift in America's view of homosexuals, putting isolated sexual acts into the broader relational context most Americans already understand for themselves. While that change is still controversial and subject to setbacks, it is as fine and substantial a legacy as any hero of this or any movement has left behind.

By the early 1980s, the sexual revolution was leaning back in bed smoking a cigarette. With the invaluable assistance of Anita Bryant in 1977, gay rights were getting national attention. That was the year the Gallup organization first began asking people about gay rights with the question, "Do you think homosexual relations between consenting adults should or should not be legal?" (It was not until 1999 that "legal" could get up to 50%.)

In the early 80s, gay activism had transformed from the angry riots prompted by police raids of gay bars in Los Angeles and New York into coherent organizations, mostly in big cities. Even television was flirting with openly gay characters in primetime shows like Soap, Dynasty and Love, Sydney.

And in 1982, the deadly constellation of symptoms first known as Gay Related Immune Deficiency was renamed AIDS. Over the next few years, this would bring more people out of the closet (some of them involuntarily) than anything history had ever seen. Those who fought or died from the disease - and particularly those who battled the political establishment that wanted so badly to ignore it - clarified for the culture, once and for all, that homosexuals existed in families and communities in every part of the nation.

It was in this context that Tom Coleman took the fight for gay equality in a direction it was only still beginning to imagine - legal rights for same-sex couples.

Up until the first experiments with domestic partnership in Berkeley and San Francisco, the struggle had been focused on, first, getting rid of laws that made homosexuals criminals (and thus, subject to arrest and imprisonment, or, at best, extortion and threats by government and private individuals), and then on enactment of some kind of non-discrimination laws, particularly in employment so people could make a living without having to hide their sexual orientation for fear of being fired.

These were protections for lesbians and gay men as individuals. But like most heterosexuals, homosexuals are prone to - and do - fall in love and form permanent relationships. With the elimination of sodomy laws in California, the neutering of section 647(a), and the administrative protections gained under the Governor's executive order - particularly at the Fair Employment and Housing Commission -- the first blocks were in place in California to allow lesbians and gay men to come out of the closet with rudimentary legal safeguards. And with the broader culture's radically changed notions of sex in place, lesbians and gay men could conduct a satisfying sex life congruent with their sexual orientation.

But the law does more than just allow people the liberty to have sex. It also encourages people to commit to one another, and rewards those who do. While gay rights rhetoric had sometimes included marriage as a goal, there was far too much bad law on the books and misunderstanding in the general culture that needed to be addressed first. Tom, himself, referred to marriage as the "penthouse" issue of the gay rights movement - you can't build, much less move into the penthouse until you've constructed the rest of the edifice.

Tom and his partner, Michael, may actually be among the world's first married same-sex couples. In 1981, they invited about 300 guests, including family, friends and co-workers, onto a boat that sailed into international waters, where a Catholic theologian and good friend performed their ceremony. The poster Tom had printed to celebrate the event said, "Recognized By No Nation -- Married In International Waters." Whether or not the marriage was "legal," it was certainly not "illegal" since no law applied.

But Tom's interest was not in marriage. He saw too clearly how much political and cultural work needed to be done before the state was ready for that. Instead, he seized on the broader issue that encompassed marriage - the notion of "family."

In 1980, Jimmy Carter's White House Conference on Families inadvertently stumbled on the culture war when it changed its original name from the conference on "Family" to the conference on "Families." In a replay of the Reformation, any questioning of the uniform doctrine was viewed as the destruction of the entire concept. In the view of the right, this linguistic change split the world in two.

That same year, California's Supreme Court had to address the same issue. In its decision in City of Santa Barbara v. Adamson, the court overturned a city single family zoning ordinance that defined "family" as those related by blood, marriage or adoption -- which allowed an unlimited number of people so related to live in the single family home - when the city cited a woman who shared her 24 room mansion with 11 adults. The court ruled that some relationships not based on blood, marriage or adoption could, in fact, be families.

Tom saw a relationship between that decision and the fledgling efforts in Northern California as the key to getting government and cultural acknowledgement of the rights of same-sex couples. Aren't their committed relationships also families?

The recommendation of a state family registry in the report of the Commission on Personal Privacy served as the debut of that idea. Then, after the failure of San Francisco's domestic partnership proposal, Berkeley was able to enact domestic partnership rights for its employees in 1984, followed the next year by the newly incorporated City of West Hollywood. Both were extremely small cities, but they showed that, taken a step at a time, local politics could be used for gay inclusion in the law.

At the time, the combined population of Berkeley and West Hollywood was less than 183,000. Los Angeles had a population of about 3.7 million. That was the kind of test domestic partnership needed.

Politics is hard, even at its best. But if you're a very small minority trying to overcome a history of misunderstanding and outright prejudice, political victories may seem inconceivable. The legislative efforts to overturn state sodomy laws were victories of unimaginable importance to the gay rights movement in the 1970s, but as in California, those legislative changes came mostly through adoption of many other reforms to state laws having nothing to do with sexual crimes, reforms recommended in the Model Penal Code.

That strategy of change through coalition was not lost on Tom Coleman in California. With the demise of the criminal sodomy laws, it was finally possible for ordinary lesbians and gay men to engage in open political activity with others as homosexuals, without having to fear arrest and imprisonment simply for being homosexual - a constant threat in jurisdictions that still had sodomy laws on the books. It is worthwhile here to express my awe of the conviction and bravery of those extraordinary men and women in the 1950s and 60s who had publicly fought for gay equality irrespective of the possibility of imprisonment: heroes like Harry Hay, Morris Kight, Frank Kameny, Del Martin and Phyllis Lyons.

In the mid-seventies, there were already some individual legislators who were willing to carry bills on behalf of gay equality, but they understood these would have little chance of actually obtaining a majority vote. This was, of course, still during the time when the common vocabulary to discuss homosexuals included words like "perverts" and "deviants." When homosexuality came up in polite conversation, even our heterosexual friends could be heard referring to us as being "that way."

So political activity at the retail legislative level was still a futile effort. However, Tom had seen reports in 1975 that Governor Milton Shapp of Pennsylvania had issued an executive order to the many state agencies under his control to help end discrimination against people "because of their affectional or sexual preference." This was wholesale politics, and Tom flew to Pennsylvania to see how it would work. Gay rights supporters were taking full advantage of the order to convene meetings with heads of agencies and policymakers throughout the administration to discuss their status under the various laws, not as criminals but as citizens. This was particularly parodoxical in Pennsylvania which, unlike California, still had its criminal sodomy law on the books.

Shapp was running for President at the time, and during the campaign, Tom met him personally and asked if he would send a letter to California's then-governor, Jerry Brown, about Shapp's executive order. Shapp did so in early 1976, mentioning it had come at the request of Tom Coleman. Tom continued writing about the issue of executive action in a publication he had founded, the Sexual Law Reporter.

A couple of years later, he had his chance to act. The Municipal Elections Committee of Los Angeles was a group of well-heeled and well-connected lesbians and gay men who were willing to use their positions and money to get politicians to support gay rights. In 1979, Assembly Speaker Leo McCarthy was their guest (a tribute to MECLA's influence in 1979), and he mentioned the possibility of an executive order. Tom was at the meeting and saw that his idea was gaining traction. He immediately followed up with a letter to Jerry Brown, citing his work in the Sexual Law Reporter. Less than a month later, he got a call from the Governor's legal affairs secretary who had a draft order the Governor wanted to issue that day. He wanted to go over the wording with Tom, who offered a few suggestions. The final version was issued that afternoon. While Brown certainly deserves credit for taking this action, it's also important that he didn't take, or even seem to want, any credit for it. Instead, his press for the day focused on him and Linda Ronstadt leaving for a trip to Africa. Somehow, the executive order didn't make it into the papers.

Nevertheless, Tom's connection to the Governor's office served California's gay rights movement extremely well. Tom took advantage of the order and began working with the administration and other gay rights activists on some pending issues related to employment and housing discrimination. He also used it to help put pressure on some gubernatorial appointees to commit to changing existing anti-gay policies. The mere idea of gay activists having political pressure at that time was, itself, revolutionary. This was, at last, the exercise of politics to advance gay rights. Rather than trying to change policies through the courts, Tom and others were able to use the executive order to convince the agencies directly responsible for housing and employment discrimination that they were, in fact, sometimes part of the discrimination lesbians and gay men suffered, and that they could do something to stop that -- as the Governor had demanded.

But there was still work to be done to correct notions in the broader culture about homosexuality. Tom began lobbying the administration to create a large commission to study the issue of sexual orientation. Working with gay allies at both the state and the national level (in 1980, Governor Brown was in the race for the Democratic presidential nomination), Tom convinced the governor to create the Commission on Personal Privacy. Again, this was a coalition effort - a practical, and often necessary part of any political effort by a minority group - and the Commission hired Tom as its Executive Director. In Tom's signature fashion, the Commission dealt with a range of issues, including aging and disability.

The Commission held hearings throughout the state, and its report was issued in 1982. It made a number of recommendations that were still novel in the political landscape, but one of them provided the foundation for the gay marriage movement: a state registry for "alternate families." This was based on San Francisco's political trainwreck that year in trying to adopt the nation's first domestic partnership ordinance before the political culture was ready for it. Supervisor Harry Britt had seen the idea being explored across the bay in Berkeley, and without preparing either the local gay community or in particular then-Mayor Dianne Feinstein, Britt brought it up for a vote in the Board of Supervisors. The press caricatured it as legal protections for live-in lovers, and the mayor vetoed the ordinance because no one even knew how much such a proposal would cost the city.

The Commission on Personal Privacy's recommendation for a state family registry took San Francisco's failure and massaged it into something people could begin to think seriously about. In 1982, that put California into the history books; at that time, virtually no one else in the political world was thinking seriously about the rights of same-sex couples.

1976 was a momentous year for gay rights in California. The legislature had finally passed the bill decriminalizing sexual acts between consenting adults and it went into effect on January 1. Criminal sodomy laws were one of the key legal underpinnings of the closet. The mere threat of prosecution drove most men who had been caught or entrapped to confess and enter a guilty plea, and these easy prosecutions were appealing to vice officers and prosecutors. In this post Lawrence v. Texas world, it might be hard to appreciate how important this change was, but in California it was the beginning of the modern era.

After the law went into effect, police were still able to harass gay men, but not for any underlying criminal sexual conduct. Rather, they used Penal Code section 647(a), which made it a crime to solicit or engage in "lewd and dissolute" conduct. Tom Coleman had been interested in the selective use of this section against gay men since 1972, and in 1976 he had the opportunity to challenge it. Tom was then known as one of the go-to lawyers in the barely existent gay legal community, and Don Pryor came into his office having been arrested for solicitation of oral sex with an undercover vice cop.

Again, some context is important. At the trial, Tom was told by the judge that he could not use the words "gay" or "homosexual" in the courtroom. The judge would only accept the common legal parlance at the time, "sexual pervert" or "sexual deviant." (As an experiment, try to find newspaper articles prior to the 1970s about lesbians or gay men. You will find very few that use those terms, and a couple that might use the term "homosexual." But search for "sexual pervert" or "deviant" and you will have the key to learning about our history, at least in the public record.)

Despite the vocabulary skirmish, the trial went forward. After the jury could not agree on a verdict (five jurors wanted to convict, seven to acquit), the judge ordered a mistrial. But Tom's primary theory of the case was the unconstitutionality of section 647(a) in such cases, in light of the fact that there was no underlying crime at issue any more. If oral sex is not a crime, how can asking someone to engage in it consensually be prosecuted? So rather than go through a retrial, he filed suit directly in the California Supreme Court. That case, Pryor v. Municipal Court, while not directly overturning 647(a), narrowed it in light of the new law so that it was effectively useless as a tool to harass gay men.

If this seems like an insubstantial victory in light of what is going on today, it was certainly not at the time. In tandem with the legislative decriminalization, there was very little left in California for police to use against homosexuals. As a consequence, lesbians and gay men could more confidently come out of the closet.

More important, it paved the way for more openness by lesbians and gay men in the legal field, both as lawyers and judges - which is exactly what happened in Los Angeles. Openly gay lawyers at the time were subject to being disbarred for criminal activity, and simply by being openly gay they were taking a big risk. Decriminalization was enormously important in opening the closet door, but it was 647(a) that enabled the existing prejudice of police officers, judges and even lawyers on the other side to have the upper hand over anyone even suspected of being homosexual. Making that statute a nullity was a critical step in creating a fully open and proud gay community.

That victory allowed Tom to move into working more directly in the political process, and specifically, with the office of the governor.

I've realized that my references to Thomas F. Coleman may need some background. Because I've known Tom since the 1980s, in my mind he's part of the context of the gay rights movement. But few people know the long list of his accomplishments. So I'll be doing a few posts that I hope will capture at least some of the key roles Tom has played in getting us to where we are today. It is easy to forget - or for younger people, not to even know - that charges of "judicial activism" and bigotry by gays against Christians are fairly new political tactics. Not that long ago, judges and the police were really part of the problem, and the dominant prejudice against homosexuals was so complete that many lesbians and gay men accepted it themselves. Tom is one of the people who helped us turn that around.

Tom moved to Los Angeles from Detroit at about the same time the Stonewall Riots were taking place in New York - which is to say, about two years after the Black Cat riots took place in a similar bar in Los Angeles, which helped prompt the creation of The Advocate.

He attended L.A.'s Loyola Law School and helped form one of the first gay law student groups in 1972 - with both formal recognition by the school and student group funding. To give you some sense of the era, Tom attended the Ninth Circuit's ABA meeting that summer, and, after much soul searching and anxiety, asked a fellow male student to dance at a social event - to turned heads and considerable gawking.

Gay men were, at the time, still being arrested by the police in L.A. at gay bars even after the Black Cat Tavern riots, and Tom focused on asserting that the solicitation law the police relied on was unconstitutional. He helped organize 22 individual defendants who had been arrested at the Black Pipe bar into a group who challenged the solicitation law - a legal first. In those days, police could depend on the shame of the defendants to win their convictions. By organizing the defendants Tom helped to turn the tables, to show the court that these men did not necessarily accept the prevailing notion that what they'd done was wrong.

A bit of context is in order. At the time, the L.A. police unit assigned to gay bars was referred to as the "fruit detail." A police representative provided written testimony to the legislature that gay men were prone to the seduction and molestation of adolescents and children. L.A.'s inordinately powerful police chief, Ed Davis, was publicly comparing gays to lepers spreading disease.

Tom worked with several other people to issue a report that showed gay men were being selectively prosecuted. Despite very strong political opposition, he stuck to his guns in public forums, challenging Davis - at one point having to adopt his middle initial because there was another Tom Coleman practicing law in L.A. who was concerned about being misidentified from the increasing number of press reports about Thomas F. Coleman's crusade.

Some more context. In one of Tom's cases, his client accepted a plea bargain. When the judge issued the probation terms, he included these: (1) the client could not "publicly associate with known homosexuals," and (2) he had to stay out of places where homosexuals would congregate. Tom, of course, objected since this meant his client could not, in fact, associate with his own lawyer, a "known" homosexual. The judge blithely noted Tom's objection, and Tom took his client by the arm, asking him in a loud voice to violate the terms of his probation. They went to the chambers of the supervising judge, and after some negotiation got an order from the court that such probation terms were improper.

This is the legal and social structure that existed - and needed to be changed - before anyone could even think about what rights same-sex couples were entitled to.

[Note: The non-public information here is taken from Tom's as-yet unpublished memoir, The Domino Effect.]

Jon Rauch mentions his very good article on the vital, social importance of incrementalism in gay marriage. To that, I add a hearty Amen, and urge everyone to read it immediately.

But in mentioning one of the most important strains in the original thinking about how to achieve equality - what Jon calls "the family stream," a more conservative contrast to the liberal Stonewall civil rights stream - he winds up underarguing his own point. And in so doing, he makes a mistake too many people do -- undervaluing the landmark role that California played in gay marriage by taking a series of small, cautious local steps before making equality a statewide issue. California did not start with marriage or lawsuits It started with domestic partnership.

As I argued in California's Quiet Revolution, the landscape in the 1980s included no legal rights at all for same-sex couples as couples. While we had access, in California, to explicit contractual rights under our Supreme Court's landmark decision in Marvin v. Marvin, no law anywhere - not in California, not in the U.S., and not anywhere else on earth - recognized the relationships of same-sex couples.

That changed in the early 1980s, when the City of Berkeley began its first efforts to recognize "domestic partners." The original and unprecedented laws went into place in Berkeley in 1984, followed the next year by the City of West Hollywood.

None of these ordinances could have changed California's marriage law, and they did not purport to. They simply did at the local level what local governments can do - recognized that same-sex couples existed within their jurisdictions and had the same needs that opposite-sex couples did. Since they could not get married under state law, the local governments provided what recognition and rights they could. The revolution was that it was governments that were trying to treat same-sex couples fairly.

This local movement took a giant leap forward in 1986 when Thomas F. Coleman, Nora Baladerian and Christopher McCauley got the City of Los Angeles to create its Task Force on Family Diversity - which, for full disclosure, I served on. The point of the task force was to show that the notion of "family," traditionally limited in law to relationships of blood, marriage and adoption, included people - specifically same-sex couples - who were functioning families even though they could not meet the existing legal qualifications.

That task force is, in my (obviously biased) opinion, the fountainhead of Jon's family stream. It is what led to L.A.'s adoption of a domestic partnership ordinance in 1988, and that is what helped to put domestic partnership - and the awkward legal position of same-sex couples in the law -- on the map. And it was domestic partnership that caused the very slow but inevitable movement that has landed us in today's radically different legal world for same-sex couples.

Thus, I disagree with Jon's assertion that "Right off the bat, the political activists involved in same-sex marriage eschewed Burkean principles. . . " That may have been true of an awful lot of activists on both sides, probably the vast majority. But there were some visionaries - and Tom Coleman is one of the most savvy - who saw the value of taking small steps to begin a long journey.

Professor Dale Carpenter (who I am happy to be the first to note has just joined our blog with Joan de Fresno) has an excellent piece at another site about religious liberty protections for those opposed to same-sex marriage. He expands on the Jon Rauch/David Blankenhorn compromise, and asks some very pointed questions which, I think, boil down to a single one: How should the law deal with individual religious believers?

The First Amendment protects the "free exercise" of religion, which sounds pretty broad. But as Justice Antonin Scalia has pointed out, if this protection were too broad, it would allow any religious believer to opt out of obeying the law. If any person's action based on a religious belief is the protected exercise of religion, then few laws would be exempt from a potential personal veto. Scalia took this threat seriously in his 1990 majority opinion in Employment Division v. Smith, where the court upheld an Oregon law prohibiting drug use against a challenge from religious believers who wanted to use peyote in a sacramental exercise.

It is usually easy to determine what counts as a religious exercise in a church, and even for a religious entity such as a church-run hospital. But the law protects "sincerely held" religious beliefs, and any individual can sincerely believe pretty much anything, up to an including that

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.

This is an exact quote from the trial judge who originally upheld Virginia's law prohibiting blacks and whites from marrying one another, the law the Supreme Court overturned in Loving v. Virginia.

An awful lot of people believe awfully sincerely that homosexuals are sinners, a belief that is in direct conflict with laws treating lesbians and gay men equally in civil society. I have been concerned about the scope of a personal religious veto, not just with respect to homosexuals but in general, since the early 1990s when I worked on a California Supreme Court follow-up case to Employment Division v. Smith.

Our court didn't adopt a theory I'd proposed on religious freedom, but since 1996, I confess that individual cases of abuse of free exercise have not been clogging the courts as I'd feared. That's why Douglas Laycock's eloquent letter to the Connecticut Legislature resonates with me. He is a well-known scholar of the contours of religious liberty, and notes his own support of same-sex marriage. He argues that religious opponents need some breathing room in our democracy on this issue.

This will come at some cost to same-sex couples who might have to suffer through some uncomfortable face-to-face religious opposition in public situations. That is no small thing for those of us who have encountered it. But those couples will also know that this individual's personal beliefs, whether respectfully and civilly articulated or not, won't prevent the couple from obtaining whatever the law permits and the market provides.

After many years of pondering the options, I think this is a reasonable trade-off. The law, in all its majesty, cannot prevent people from experiencing their deep feelings, and it is at its weakest when it tries. Laycock states what has become painfully obvious:

Refusing exemptions to such religious dissenters will politically empower the most demagogic opponents of same-sex marriage. It will ensure that the issue remains alive, bitter, and deeply divisive.

Laycock is convinced that there won't be a lot of objectors, and while I'm a bit more skeptical, I think it's worth a shot. Religious anxiety really is the only argument left against homosexuality, and even that is fading. If we can kill it off with kindness, I'm for it.

This quote within Jon Rauch's post jumped out of me: "Another 37 percent said they thought the party should avoid the issue [of gay marriage]."

And there you have it: a capsule summary of the problem very small minorities have in a democracy. The majority already has all the relationship rights they want or need. It's easy for them to simply "avoid" the issue of same-sex marriage.

We don't have that luxury, but only because we're the only ones directly affected by the lack of equal rights. We don't get a day off from inequality, and if we were to avoid the issue, it would mean giving up on ourselves.

Does anyone really think, after we've come this far, that we're going to call it quits? Well over a third of these Republicans may want the whole issue to just go away, but that's because the status quo works for them. It doesn't work for us, and it is a supreme goal of this movement to make sure that heterosexuals truly understand that fundamental fact.

There's a telling section in the Iowa Supreme Court's opinion in Varnum v. Brien, that hasn't gotten as much attention as it should. The section is only about four pages long, but it says everything about the current state of the debate over gay marriage - and, in general, about gays in civil society.

After addressing the five key arguments against same-sex marriage, and explaining why they are not sufficient to justify state discrimination against same-sex couples, the court then reaches out to answer a sixth argument that the government had not made: religious opposition:

The belief that the "sanctity of marriage" would be undermined by the inclusion of gay and lesbian couples bears a striking conceptual resemblance to the expressed secular rationale for maintaining the tradition of marriage as a union between dual-gender couples, but better identifies the source of the opposition. Whether expressly or impliedly, much of society rejects same-sex marriage due to sincere, deeply ingrained- even fundamental-religious belief.

That is both exactly right and extremely important. Courts do not normally need to look at arguments no one has explicitly made, but this is an argument that does, indeed, better identify the source of the opposition to gay marriage. It explains why so many of us who argue about equal protection for gays wind up against our wills in discussions about theology.

Historically, homosexuality has faced three major barriers to acceptance: (1) it was a crime; (2) it was a sickness; and (3) it was a sin. In 1961, Illinois became the first state to decriminalize sodomy (both straight and gay), a movement that ended in 2003 with the U.S. Supreme Court's decision in Lawrence v. Texas, overturning the last remaining sodomy laws in the U.S. And in 1973, the American Psychiatric Association removed homosexuality from its list of mental disorders.

That means the animating argument against homosexuality - and specifically gay marriage - remains a religious one: it is a sin.

The Iowa court acknowledged the importance of this to religious believers, but pointed out that this is not the only religious view. As evidenced by friend-of-the-court briefs in the case, many religions also "have strong religious views that yield the opposite conclusion."

No secular court can - or should - try to intervene in theological matters, one of the least controversial parts of the first amendment's religious protections. The court concluded the secular arguments are either circular, inconsistent, beside the point, or involve rules (such as procreation) that heterosexuals do not (and would not) impose on themselves. While religious arguments may be profoundly convincing to believers, civil society is made up of too many people with too many varied religious (and irreligious) beliefs for a court to have to take sides.

That makes arguments about homosexuality different from those surrounding abortion. Abortion, as a public policy matter, involves a sin that is also a well-recognized crime: murder. The issue is at what stage a fetus is a person for purposes of applying that secular rule.
But homosexuality - and gay marriage in particular -- no longer involves any secular crime. Nor is having a homosexual orientation any sort of disease that disables anyone from making voluntary, adult decisions that are lawful. Lacking either of those underpinnings, the public debate over homosexuality returns endlessly and exhaustingly to religion.

Whether or not we are a "Christian Nation," we are decidedly not a nation whose courts could conceivably resolve disputes among Christians about what is or is not sinful. Yet that is exactly the dispute that now exists, not only among Christians, but among Jews, Muslims and even religions that are not as focused on sin as Western religions tend to be.

This is a family squabble among those religions -- with some families more exercised about the subject than others. For their part, though, the courts continue to search for other reasons to justify civil discrimination, and increasingly are having a hard time of it.