Gay Marriage: Evolution or Revolution?
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.