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.

As you have no doubt read or heard, on Oct. 10 the Connecticut Supreme Court struck down the state's civil union laws and ruled 4-3 that denying the right of civil marriage to same-sex couples violated the equal protection provision of the state constitution. The ruling makes Connecticut the third state to permit same-sex marriage, joining California and Massachusetts.

In his majority decision Justice Richard Palmer wrote, "To decide otherwise would require us to apply one set of constitutional principles to gay persons and another to all others."

The decision was important for its specific denial that civil unions are an adequate substitute for marriage. Several states including Hawaii, Washington, Oregon, New Hampshire, and Maine have passed civil union or domestic partner statutes, and the ruling gives ammunition to gays in those states who might file suit to obtain full marriage status.

"Marriage and civil unions ... are by no means equal," Palmer wrote. Marriage "is an institution of transcendent historical, cultural and social significance, whereas [civil unions] are not." Further on he wrote, "There is no doubt that civil unions enjoy a lesser status in our society than marriage." In so writing, Palmer took a familiar Religious Right claim about the importance of denying gays the right to marry and turned it in a gay-supportive direction.

As jubilant as Connecticut gays were, many gays in other parts of the country were pained by the decision, fearing that it would add fuel to the conservative effort in California, Arizona and Florida to pass constitutional amendments prohibiting same-sex marriage. Sadly, they are probably right. At least, it was impolitic to issue the decision just before the election.

But, at the same time, the decision is a gratifying affirmation of the legitimacy of our legal and moral arguments for marriage equality. Future state courts ruling on the issue will no doubt examine earlier court decisions carefully, so the more decisions there are on our side, and the better the arguments they offer, the more likely future courts will also rule in our favor. Certainly a negative decision would have a harmful impact.

In addition, the more gays and lesbians who marry and are able to present themselves to their friends, relatives, co-workers and fellow church members as married couples, the more that will get people used to the idea of same-sex marriage and move public opinion in a gay-supportive direction.

And finally, we have to believe that in the long run good arguments, whether they are advanced by gay organizations or trickle down from the nation's courts, will eventually prevail over poor arguments in the court of public opinion. Democracy is founded on this belief. And at some point in the future it will become possible to repeal those constitutional gay marriage bans.

Gratifyingly, the arguments of the dissenters against gay marriage were largely poor and seem drawn from the playbook of the Religious Right. One dissenter argued that there was no evidence that civil unions were inferior to marriage. But an earlier study in New Jersey found that many people did not view civil unions as conferring the same status as marriage and documented cases in which people in civil unions were not treated as legal couples in public accommodations such as hospitals.

Another dissenting argument was that gays do not qualify as a "suspect class" that has been traditionally disadvantaged. On the contrary, the dissent argued, gays have "unique and extraordinary" political power that does not justify such scrutiny.

I confess that I have never understood this argument. Why the actual or imagined political power of any group, much less one that is widely believed to be only 4 or 5 percent of the population, should justify denying its members basic constitutional rights is far from clear.

As for gays' supposed political power, is that why sodomy laws existed until very recently? Or why gays were long arrested and jailed for engaging in sex? Or why only 0.5 percent of House of Representatives members are openly gay and why there are no openly gay Senators? Or why open gays are barred from the U.S. military? Or why gays are unable to pass a national gay civil rights law? Or why there is no gay-inclusive national hate crimes law?

The final anti-gay marriage argument is the hoary one that marriage deals with procreation. But of course, once the state allows infertile couples to marry, as all of them do, it has effectively denied the legitimacy of the "procreation" argument. In addition, eight years ago Connecticut allowed gays to adopt children, further severing the connection between parenting and child rearing. The question to be asked is, Are the children of gay couples better off if their parents are married, or are they not? The answer seems obvious.

In the last few weeks I've become seriously convinced that Saturday Night Live could help sway this presidential election. For one thing, it has crystallized Sarah Palin's foreign-policy experience in a simple phrase:

"I can see Russia from my house."

She didn't quite say that, of course, but it's close enough-not to mention funny, and memorable. [Watch the skit here.]

Thus I was counting on SNL to neatly sum up the vice-presidential debate between Palin and Joe Biden. They didn't disappoint.

Sure, there were the expected shots at Palin: her non-answers, her lack of experience, her winks. But SNL is an equal-opportunity parodist, and one of my favorite moments poked fun at Biden.

Queen Latifah/Ifill: "Do you support, as they do in Alaska, granting same-sex benefits to couples?"

Sudeikis/Biden: "I do. In an Obama-Biden administration same-sex couples would be guaranteed the same property rights, rights to insurance, and rights of ownership as heterosexual couples. There will be no distinction. I repeat: NO DISTINCTION."

Latifah/Ifill: "So to clarify, do you support gay marriage, Senator Biden?"

Sudeikis/Biden: (deadpan) "Absolutely not."

Then, in case anyone missed the contrast, he follows up:

Sudeikis/Biden: "But I do think they should be allowed to visit one another in the hospital and in a lot of ways, that's just as good, if not better."

Again, this is not quite what the actual Biden said-but it's close enough, not to mention funny, and memorable.

We've seen this before in the Democrats: on the one hand, trying to support full legal equality for same-sex couples, and other the other hand, trying to avoid the m-word at all costs. The result is an incoherent mess-one that gets messier when they try to explain the incoherence.

Consider, for instance, the actual Biden's explanation of his and Obama's opposition to full marriage equality. They don't support same-sex marriage, Biden said, because that's a decision "to be left to faiths and people who practice their faiths [to determine] what you call it."

No, it isn't. Because the question was not about religious marriage, it was about civil marriage-which in a free society is a matter for government, not religion.

I don't mean to pick on the Democrats here. The only reason that the Republicans avoid getting into the same logical pretzel is that they don't even try to make the argument for full equality under the law.

And while it's true that both Obama and McCain oppose same-sex marriage at the federal level, Obama remains far ahead on gay issues: in supporting federal civil unions, in opposing "Don't Ask/Don't Tell," in opposing key portions of the "Defense of Marriage Act," and in the kinds of federal judges and Supreme Court justices he is likely to appoint. Obama also opposes anti-gay state marriage amendments that McCain supports.

The question is how long we can politely pretend that his stance of "full legal equality but not marriage" makes sense, because it doesn't. It didn't when John Kerry used it in the last election, it didn't when Hillary Clinton, John Edwards, and Bill Richardson used it during the primaries, and it doesn't now.

It doesn't make logical sense, although I can see why some think it makes political sense.

Personally, I'm a political incrementalist. I believe in fighting for a half a loaf today and then regrouping to fight for the rest tomorrow, if the full loaf is genuinely not yet possible. That doesn't mean I don't find legal inequality demeaning: it just means that securing certain rights is more important to me than being an "all or nothing" purist.

So I'm willing to support the "half a loaf" politicians. I'm just not willing to pretend that they're offering the full loaf, or to rest content when I get it. I'm not willing to settle for "separate but equal"-another oxymoron in this debate.

History teaches us what "separate but equal" does. It demeans one group by suggesting that they must be kept apart from others. But it also embodies a bigger problem: "separate but equal" never turns out really to be "equal."

That was true during segregation, and it's true now for civil unions-a newfangled status that, in practice, simply doesn't grant full legal equality. We've learned this in case after case, as civil-union couples face legal issues with entities that don't even understand their legal status, much less recognize it.

That's why we need to keep fighting for full equality. Because in the end, there's nothing funny about unequal treatment under the law.

Not long ago columnist Wayne Besen wrote that gay Republicans have "no place" in the "GLBT movement." Because they support John McCain this year, he charged they are "shamefully in cahoots" with anti-gay forces. He claimed they have a "suicidal tendency" they must overcome. The only thing missing was the tired analogy to Jewish Nazis.

Besen is no kook. He's a widely read gay writer who fits squarely in the mainstream of the GLBT movement. It's safe to say he was only expressing openly what many people, especially leaders and activists, within the movement privately think about gay conservatives.

In fact, Besen's column was only the latest in a barrage of attacks against gay conservatives this election season. Time and again gay conservatives have been called self-hating, treasonous, and selfish. It's the worst vitriol against gay conservatives I've seen in fifteen years in this movement.

The co-founder of Manhunt was forced to resign from the company's Board of Directors because he dared to make a campaign contribution to John McCain, which started talk of a boycott against the company. People are free to boycott companies if they want to, but the fact that supporting McCain was seen as worthy of a boycott is deeply disturbing. The GLBT movement does not tolerate such dissent. What's next, banning conservative columnists from gay newspapers?

My primary reaction to all this has been rising anger. How dare these self-appointed High Priests of the Movement excommunicate the ideological infidels? As a gay conservative, I have worked my entire adult life for gay rights. It has been the focus of my scholarship and activism. That advocacy has cost me personally and professionally. And I'm hardly alone.

But the more I've thought about it, the more I realize the critics are right. People like me do not belong. When you think about it, what do we have in common with this movement?

True, we share same-sex attraction. But even that has been diluted with the addition of transgendered causes. Indeed, the insistence of movement leaders on "T" inclusion even at the cost of passing pro-gay legislation has only highlighted major conceptual differences between gay conservatives and leftists about what exactly we're fighting for.

We also share some experience of discrimination. This gives us some common adversaries and some common causes, like supporting the recognition of gay relationships and ending the military's exclusion of homosexuals.

But the experience of discrimination is different for different people, and we draw wildly different conclusions from it. While gay progressives believe we must have more government in our lives to end discrimination, gay conservatives are wary of interventions in the private sphere. While many movement leaders would punish anti-gay "hate speech," gay conservatives want freedom even for thought we hate.

Even when we agree on issues, we have very different rationales. Gay leftists tend to see access to marriage and the military as legalistic matters of "civil rights," even as they distrust these institutions. Gay conservatives eschew such rights talk, and instead see these institutions as important traditionalizing, stabilizing, and integrating forces in our lives.

At a deeper level, gay conservatives believe the path to happiness leads through the inclusion of homosexuals in all aspects of American life. Many gay leftists dismiss this as "assimilation." Gay conservatives want a place at the table. Gay leftists want to upend the table.

On non-gay issues, the chasm is wider and deeper still. Gay progressives, like others on the left, support wealth redistribution through higher taxes on financially successful people and social programs for the poor. Gay conservatives want low taxes and doubt the efficacy of anti-poverty programs. Gay leftists often oppose free trade; gay conservatives support it.

The gay left supports abortion and believes it is intimately tied to gay rights. Gay conservatives either oppose it or think it is simply not a gay issue.

Gay conservatives want an aggressive fight against Islamic radicalism. Gay leftists tend to distrust American military power and seem to think the greater threat comes not from terror but from the war on terror.

These tensions have grown as gay conservatives have become increasingly self-conscious about being gay and conservative. The Internet has connected them to each other in ways never before possible. Gay conservatives are no longer willing to sit still for lectures about what it means to be authentically gay. They will not be silent or silenced.

It is time for gay conservatives to declare independence from the GLBT movement. We'll still make common cause at times. Gay conservatives will continue to fight government-sponsored discrimination.

But it is time for gay conservatives to admit that we are aliens in this movement, that we disagree with its leadership and its most visible activists on some very basic questions about what it means to be gay, about what must be done to improve the lot of gay Americans, and about how much weight should be given to purely gay issues in a time of economic and military turmoil. This presidential election has rawly exposed the rifts that have been there from the beginning.

The marriage of the gay left and gay conservatives under the umbrella of the "GLBT movement" has failed. It's like waking up one morning next to your spouse and realizing all of sudden you don't really like each other. You've been squabbling all these years to save a relationship you no longer believe in.

Suddenly you grasp the futility of it. It's saddening but also liberating.

All the talk of mavericks during the Oct. 2 vice presidential debate started me humming the theme from The Magnificent Seven. There they are, a ragtag bunch of rugged loners in a wild country. Will they learn to work together in time to save the beleaguered townsfolk from the marauding villains? Hey, wait a minute - they ARE the marauding villains.

Maybe I just have movies on my mind, since Washington's gay film fest starts next week; but the McCain campaign increasingly feels like a movie in which the director is desperately trying to make us suspend our disbelief and buy the Republican nominee as the guy to fix the wreckage wrought by the Republican incumbent over the past several years.

Barney Frank is having none of it. The congressman from Massachusetts pounds a simple point he has made for years regarding the gay dimension in politics: that the far better record of Democrats on gay rights points to a partisan conclusion.

Defending their endorsement of John McCain, Log Cabin Republicans tout his opposition to the Federal Marriage Amendment; but he also endorses anti-gay state initiatives that Barack Obama opposes. They point to Democratic politicians' opposition to marriage equality (displayed by Joe Biden last week) to discredit gay Democrats, but Obama supports civil unions legislation while McCain does not. Sarah Palin's talk of tolerance mirrors the ex-gay movement's love-the-sinner rhetoric, and her suggestion that private contracts are sufficient for gay couples is contradicted by the experience of family law attorneys working to protect LGBT families, who have found that wills and powers of attorney are a poor substitute for marriage.

Frank wrote in 2004, "Only if an attempt to make gay bashing a national political platform clearly fails will Republicans who dissent from that view begin to get the political strength to free their party from its shackles." The Palin choice suggests that the GOP's shift in emphasis this year does not reflect an ideological change.

On Real Time with Bill Maher in 2006, Frank noted conservative dissent against the Supreme Court's 2003 Lawrence v. Texas ruling overturning sodomy laws: "The Republicans do think it should be a crime, and I think there's a right to privacy, but the right to privacy should not be a right to hypocrisy. And people who want to demonize other people shouldn't then be able to go home and close the door and do it themselves."

Long one of the smartest and wittiest people in Congress, Frank is now one of the most powerful. As Financial Services Committee chair, he has been instrumental in addressing the financial crisis. On Sep. 29, after a vote on the $700 billion financial recovery bill fell a dozen votes short and Republicans blamed partisan remarks by Speaker Pelosi, Frank was withering: "Because somebody hurt their feelings, they decide to punish the country.... Give me those twelve people's names, and I will go talk uncharacteristically nicely to them, and tell them what wonderful people they are, and maybe they'll now think about the country."

Frank is one of the sharpest debaters the House has ever had, and his toughness is essential. A favorite Republican tactic during the current Congress is introducing motions to recommit in order to derail bills that are about to pass. Responding to one such motion in April 2007, Frank said, "Members on the other side had every opportunity at the committee and in this open rule fully to debate this and to offer amendments. They chose not to. They chose instead to legislate by ambush."

Frank was addressing a similar motion in November 2007 during debate on the Employment Non-Discrimination Act when he grew emotional while describing the impact of homophobia on 15-year-olds and concluded, "Please don't turn your back on them." The House erupted in cheers.

Frank has no shortage of detractors (a right-of-center gay Washingtonian recently created a Facebook group called "Capital Punishment for Barney Frank"), but that is a sign of his success. As I watched him respond to Bill O'Reilly's charges of cowardice and unmanliness last week by rebuking the Fox News demagogue for his ranting and bullying, I thought how lucky we are that Frank, as The Almanac of American Politics wrote in 2006, "is one of the intellectual and political leaders of the Democratic Party in the House - political theorist and pit bull all at the same time." He's one of us, he's right where he should be, and he's at the top of his game.