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.
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% of the vote in favor, and only 38.6% 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. So far, it appears that a majority of California voters will reject the initiative. Polls currently show that between 55% of voters plan to vote against Prop. 8, and while this is obviously a volatile issue for some, it has ceased to be inflammatory to a large number of Californians. After eight years of exposure to open and legally protected domestic partners, any fear, misunderstanding or just incomprehension about same-sex couples has gradually been eroded in the public mind.
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.
We're at the stage now where the political work is starting to pay off.