IGF CultureWatch

Twenty-four years ago, California started a revolution that will culminate in this year's statewide election on same-sex marriage. In 1984, same-sex couples lacked not only the ability to marry one another, but were denied virtually any government recognition of their relationships - anywhere in the world.

In the early 1980s, there was not even a vocabulary yet for talking about same-sex couples. At the time, homosexuals in many states could still be subject to arrest for violation of the criminal sodomy laws. Naturally, they had bigger problems than trying to vindicate their rights as couples.

California's sodomy law was taken off the books by the legislature in 1976, which made the courthouse look a little less formidable here. For whatever reason, though, Californians took the lead in actively challenging laws that ignored the existence of same-sex couples.

One of the first cases involved Earl Donovan. He had been living with his partner for 27 years. When his partner died, Donovan filed for death benefits. He ultimately prevailed - but not because the court recognized him as a partner. The statute said that benefits could be paid to a "dependent" who was a member of the employee's "household," and it was clear Donovan qualified.

In contrast, Boyce Hinman tried to enroll his partner of 12 years in his dental coverage as a spouse, but was denied because Hinman and his partner were not married. The Court noted that California law prohibited the men from getting married, but concluded this was not discrimination because they were treated no differently from other unmarried couples.

It was this prevailing public attitude - that same-sex couples were like any unmarried couples - that illustrated the void same-sex couples faced. Heterosexual couples could, of course, marry their partner if they chose. But if marriage is a relationship between one man and one woman, what option did the law leave for same-sex couples?

At the time the Donovan and Hinman suits were pending, Larry Brinkin, a member of the San Francisco Human Rights Commission, was the first person to formally use the term "domestic partner," in a lawsuit he filed against his employer, the Southern Pacific Railway. Brinkin's partner had died, and Southern Pacific would not let Brinkin take three days of bereavement leave because the partner was not a legally recognized member of Brinkin's family. The common definition of "family" included only those who were related by blood, marriage or adoption. Brinkin's partner was not related to him in any of those ways.

After Brinkin lost his challenge in 1982, the San Francisco Board of Supervisors took up the challenge of somehow acknowledging the relationships of same-sex couples. They passed what would have been the first city ordinance recognizing domestic partners. But then-mayor Dianne Feinstein vetoed the measure.

The following year, the city of Berkeley ordered a study of the issue, and in July of 1984, the city council voted on - and rejected - a domestic partnership proposal, based largely on a definition devised by attorney Matt Coles. However, in August, the Berkeley School Board took up the measure and adopted it for school employees, making them the first government entity in the world to enact legal rights for domestic partners.

The city of Berkeley followed suit later that year. And in 1985, the newly formed city of West Hollywood enacted its own domestic partnership ordinance, and added a new twist - a registry where couples could formally and publicly make it known that they were domestic partners.

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. So L.A.'s interest in the issue helped move it into a more mainstream position.

In April of 1986, the city of Los Angeles created a Task Force on Family Diversity, convened by Councilman Michael Woo. It was charged with looking at the "nature and extent of family diversity in the city of Los Angeles," including "any evident problems" experienced by single-parent families, unmarried couples and, specifically, gay or lesbian couples. (For the record, I served on the task force, and under the guidance of Task Force consultant, Thomas F. Coleman, and co-chairs, Christopher McCauley and Nora Baladerian, authored a paper setting out the framework for an ordinance that would recognize domestic partners.)

The Task Force held hearings in 1986 and throughout 1987. Several companies at the time had begun experimenting with domestic partner benefits for employees, beginning with the Village Voice newspaper. The primary employee benefit at issue was health insurance, and there was considerable resistance from the insurance industry to extending coverage to unmarried partners.

There were two primary concerns. The first was how an insurance company could tell the difference between someone who was just a friend or roommate, and one who was a life partner. A marriage license is a clear piece of evidence that the couple are more than just acquaintances. Lacking that, businesses - as well as governments - could be defrauded by couples who were not, in fact, committed to one another.

This resistance was heightened, at the time, because the partners at issue were homosexual, and the nation - not to mention the insurance industry - was just beginning to confront the issue of AIDS.

The Task Force report, issued in four volumes, noted the lack of legal options for same-sex couples, and recommended that L.A. recognize domestic partners. Using the models already in place in Berkeley and West Hollywood, the Task Force recommended that domestic partners sign a legally binding document setting out the specifics of their relationship.

(For example that they were unmarried, but were one another's sole domestic partner, that they shared a common household and had joint responsibility for household finances.)

This certificate of domestic partnership could be used by the city (and any interested insurance companies) to delineate the couple from mere roommates who might be seeking health insurance coverage. In 1988, the city acted on the recommendation.

Domestic partnership was a political, not a judicial effort. While same-sex marriage had been discussed as a possibility since the formation of the first two national gay rights organizations in Los Angeles in the 1950s - the Mattachine Society and the Daughters of Bilitis - the only challenges to the marriage laws had been judicial, rather than political. And they had been failures.

If courts would not enforce this kind of equality, might there be some other form of recognition government could give to same-sex couples? That was the theory behind domestic partnership. Could the political process fill in the gap if something other than marriage was the legal vehicle?

The wisdom of this decision was illustrated by what happened subsequently in Hawaii. Three years after L.A.'s ordinance was adopted, Ninia Baehr and her partner, Genora Dancel, filed a lawsuit in Hawaii to have their relationship recognized as marriage. And in 1993, the Hawaii Supreme Court rocked the nation when it issued the first legal opinion from a state high court concluding that the constitutional protection of equality includes same-sex couples. This set off the well-known nationwide fury.

Because of concerns about whether other states would be required to recognize same-sex marriages in Hawaii, Congress passed the Defense of Marriage Act, or DOMA, by a vote of 85-14 in the Senate, and 342-67 in the House. The bill was authored by Georgia Congressman Bob Barr, and signed by President Bill Clinton, still a bit shell-shocked on gay issues from the firestorm he had set off by trying to fulfill a campaign promise to integrate open lesbians and gay men into the military.

These two laws with Clinton's signature on them - DOMA and Don't Ask, Don't Tell - are a testament to the hurricane force in the national political arena of anti-gay nervousness in the 1990s. After all that, Hawaii reversed the court's decision, changed its constitution, and implemented a limited form of domestic partnership they called "reciprocal beneficiaries."

Meanwhile, in California, the local domestic partnership laws of the 1980s continued to move through the state's political bloodstream. The first bill in the state legislature was introduced in 1995, but died in committee. In 1999, after four more failed attempts, the legislature passed AB 26 by Assembly Member Carole Migden. It provided minimal legal rights for domestic partners - hospital visitation and health insurance coverage for public employees - but it also provided the public registry that West Hollywood had pioneered.

There was vehement opposition, mostly from the Christianist right. They introduced an initiative, Proposition 22, for the March, 2000 election, which would add a provision to California statute (not, as with many other states at the time, a constitutional amendment) that said in its entirety, "Only marriage between a man and a woman shall be valid or recognized in California." The initiative passed with 61.4 percent of the vote in favor, and only 38.6 percent opposed.

It was that initiative, along with California's existing definition of marriage as limited to opposite-sex couples, that the California Supreme Court addressed and overturned this year. And now California's electorate has the chance to ratify or reject that decision in November.

However, even if Prop. 8 were to pass, its proponents have already conceded that California will not return to the past. In the years following 1999, California's domestic partnership law evolved into a nearly complete equivalent to marriage, and the initiative's proponents have made it clear in their ballot arguments - the definitive statement of an initiative's intent - that it will not affect domestic partner rights. This is how public policy in a democracy is supposed to work. No matter what happens with Prop. 8, California's same-sex couples will not be consigned to a world with no legal protections. Legally recognized same-sex couples are now an established part of the California landscape.

California has come a long way in less than a quarter of a century. We've given the world a small revolution, demonstrating that court decisions are sometimes a necessary part of the struggle for equality, but that politics and law do not work independently of one another.

The tragic opera of former congressman Mark Foley is the revenge of don't ask, don't tell.

Foley, a Republican from Florida, resigned Friday after e-mails and instant messages between him and several teenage congressional pages surfaced. The Republican leadership knew that at least one page had gotten e-mails where Foley admired the body of one of the page's friends, and asked the page for a picture of himself, e-mails the page naturally found sick and a bit creepy.

Republican leaders responded to the potential political problem by telling Foley to knock it off. With respect to the larger issue, though, there was no asking or telling. The boy's own revulsion at the obviously inappropriate attention was ignored, not only by Foley's partisan fellows, but by some news outlets that also had seen the e-mails.

If this has a familiar ring, look in the Catholic Church for the bell. Republican leadership was acting like the Catholic hierarchy, which played shell games with men accused of sexually abusing children. And there's a good reason for the similarity. The inability to deal straightforwardly with gay people leads to other kinds of truth-avoidance when things go south. But that's what comes from not wanting to know something, and going out of your way to remain ignorant.

We've come a long way since homosexuals had two basic options: the closet or jail. But a good portion of the electorate, most of them Republican, still seems to long for the good old days when we didn't have to think about ``those people." Both Libertarians and, generally, the Democratic Party have withdrawn their official support for the closet over time. States, too, are seeing what a losing battle this is, and allowing homosexuals to live their lives in conformity with, rather than opposition to, the law.

But that leaves Republicans and the religious right trying to live a 1950s lie in the new millennium. As Foley prepared in 2003 to run for the Senate, newspapers in Florida and elsewhere published stories about his homosexuality. But you'd never hear any of his colleagues saying such a thing. And Foley himself refused to discuss the issue, until his lawyer acknowledged Wednesday that the former congressman is indeed gay.

Being in the closet is hard to pull off without help, and for years Foley was eagerly abetted by his Republican brethren, whose willful blindness is at the heart of the current tragedy. Speaker J. Dennis Hastert, majority leader John Boehner, and others in the House leadership are still under the impression that the closet, like Tinkerbell, will continue to live as long as we all believe. And believe, they do -- against all the evidence.

But the number of people who believe in the closet is declining day by day and generation by generation. Hastert and the rest of his cronies are their own victims. The political turmoil they caused for themselves is only just.

But their failure to acknowledge the obvious reality has other victims as well: the boys whom Foley apparently pursued. Some of the messages show some tolerance of Foley's advances, but not much more. This was no one's ``Summer of '42." The healthy disgust in one boy's use of the word ``sick" repeated 13 times seems about right.

But what can one expect from denying grown men -- and women -- a normal, adult sex life? Whether the denial of adult intimacy comes from religious conviction or the ordinary urge toward conformity, people who run away from their sexuality nearly always have to answer to nature somehow. For people who fear abiding and mutual love, the trust and confusion of the young is a godsend. Add to that the perquisites of power, and a degenerate is born.

Fortunately for the arc of justice, the closet ultimately works against itself. Foley's case and the Catholic Church's sex abuse scandal are the last screams of the dinosaurs. It took the dinosaurs a long time to finally die off, or evolve into creatures that could continue to survive, and the same will be true of the closet's final supporters. But they will look more and more ridiculous each time that they take pride in holding up the ruins of this particular antiquity while tending to the wounded when the building again collapses.

Like the Catholic Church, the Republican Party in Washington guarantees its own future calamities in its enduring and steadfast habit of pretending that, unlike heterosexuality, homosexuality can be either denied or suppressed.

Listening to President Bush, you'd never know that the nation is having a debate over gay marriage. His Saturday radio address to the nation had no mention of gay couples - or even homosexual individuals. Instead, we hear such things as "Marriage is the most enduring and important human institution, honored and encouraged in all cultures and by every religious faith … the commitment of a husband and a wife."

Apparently, for the president, this is an argument of heterosexuals, by heterosexuals and for heterosexuals.

But heterosexuals already have marriage. The reason this debate is going on is because homosexuals do not - and, for the first time, have made the argument that they should.

There is certainly room for disagreement on that point. But to carry on the discussion without even mentioning one entire side is to conduct half an argument.

In this, at least, the president's Christianist supporters - those who use their religion as a political tool - are honest. They do not like homosexuals. Or, when they are being charitable, do not like homosexual "activity."

Their attitude toward lesbians and gay men ranges from hostility to mere condescension. But at least they acknowledge the debate is about homosexuality.

Compare them to the president. He has now addressed this issue publicly in a State of the Union address, in his reelection campaign and in the context of congressional debates over two proposed constitutional amendments that would bar same-sex marriage. But he has yet to address any comments directly to same-sex couples.

The closest he comes to it is to invoke "activist" courts and judges. In a speech Monday, he said that "an amendment to the Constitution is necessary because activist courts have left our nation with no other choice."

But they are "activist" precisely and only to the extent that they have ruled in favor of same-sex couples. In the contorted politics of this issue, courts are subjected to attacks on their good faith and credibility because politicians are not willing to say they do not believe that lesbians and gay men are entitled to equality.

But the irony gets thick when the president purports to be evenhanded in conducting this half-debate. Bush said this in his most recent address on the issue: "As this debate goes forward, we must remember that every American deserves to be treated with tolerance, respect and dignity. All of us have a duty to conduct this discussion with civility and decency toward one another, and all people deserve to have their voices heard."

What Americans is he talking about? The ones he consciously never named in his speech? Does he seriously think lesbians and gay men are being treated with "civility and decency" - much less "tolerance" or "respect" - when he will not meet publicly with a gay or lesbian group on this issue and will not even mention that the debate over same-sex marriage is about them?

It is beyond laughable at this point for the president to say that "all people deserve to have their voices heard" when he is the chief person who will not hear those voices.

If homosexual Americans are not entitled to equal protection, then an honest president would say so and explain why.

We are, perhaps, beyond believing this president to be honest. But if he is to be congratulated by the Christianists for bowing to their wishes, shouldn't they, at least, require him to say what he means?

The answer, apparently, is no. They know exactly what he means and exactly who he is talking about. And if he is less manifest in his dismissal of gays and lesbians than they, his may be the greater insult for being so much more indifferent.

For decades now, lesbians and gay men have been open about our sexual orientation. But the president's message to his supporters is that we should just stick with what worked for so long - at least for heterosexuals. If lesbians and gay men won't go back in the closet, he will do what he can to impose one.