S.F. Wedding Planners Are Pursuing a Legal Strategy
The strategy was methodical. For more than a dozen years, lawyers for gay and lesbian causes had carefully selected their battlefields, identifying key states for constitutional challenges aimed at broadening their rights.
California was not to be one of them -- at least not any time soon -- and marriage was not supposed to be the central legal issue, at least not yet.
But over the last two weeks, San Francisco Mayor Gavin Newsom dramatically accelerated the legal strategy.
Gay marriage had been debated in the abstract, allowing opponents to depict it as dangerous, he argued. What the legal strategy needed was real couples to place before the courts. The plan should be to marry first and then fight the legal battle.
More than 3,000 same-sex marriages later, that decision has opened the door to what could be a crucial legal test.
“In a way it feels like the dam broke,” said Jon W. Davidson, senior counsel at Lambda Legal, the nation’s largest lesbian and gay legal advocacy group.
San Francisco’s actions were deliberately planned with the courts in mind, according to lawyers who were involved in the discussions.
Five couples -- whose stories would present the gay rights argument in the most sympathetic manner -- would be chosen as test cases. Leading national gay rights lawyers would be recruited to assist the city. The first marriages would be performed on a day when courts were closed, to ensure that opponents would not be able to block the move before the weddings were solemnized.
To win, gay rights advocates must still persuade the California Supreme Court to invalidate the state’s family law, which limits marriage to “a man and a woman.” That remains a high hurdle, legal experts believe.
On Friday, Gov. Arnold Schwarzenegger delivered a stern letter to state Atty. Gen. Bill Lockyer, directing him to take “immediate action” to stop same-sex marriages in San Francisco. Hallye Jordan, Lockyer’s spokeswoman, said the attorney general planned to seek a judgment in the court case.
Largely, the gay-marriage proponents’ legal strategy has been carried out without a hitch. Foes have gone to court four times in the last nine days seeking to block San Francisco’s actions. Each time they have lost, and the long line of couples seeking to wed has continued to move forward.
Photos of young male married couples with babies strapped to their chests and elderly women who have been together for 50 years will help diminish any threat the public may feel regarding marriages between gay people, advocates hope.
“I think the parade of couples on TV and in the newspapers and magazines is what is going to change the public attitude about marriage of same-sex couples,” Davidson said. “That is what it is going to take. Before, this was an abstract issue.”
The planning began over the weekend before the first gay marriages took place, as Newsom plotted strategy with top aides, several of whom are gay.
On Feb. 9, city officials called lawyers for the American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights. Those groups are now defending the city’s actions, along with San Francisco’s chief deputy city attorney, Therese M. Stewart, a lesbian who has long been active in equal-rights causes.
Starting some days with 6 a.m. conference calls, the lawyers worked round the clock to ready their plans.
On Thursday, Feb. 12, a day the courts were closed for the commemoration of President Lincoln’s birthday, four of the five test couples were quietly ushered into City Hall to marry. Then, Newsom threw open the doors to the public.
Opponents of gay marriage have tried to keep the legal debate to a simple argument: State law does not allow same-sex weddings, and San Francisco has no right to bypass that law. They want an immediate court order blocking more marriages, but judges have put off a hearing on the issue until March 29.
“Here is my frustration,” said Benjamin W. Bull, chief counsel of the Alliance Defense Fund, which defends traditional religious rights. “Clearly the city’s strategy is to have tens of thousands of these same-gender licenses issued so, by the time a court rules on this, it may be more of a nightmare to revoke the licenses than it will be to validate them.... Wittingly or unwittingly, the Superior Court is playing into the city’s hands.”
Bull said his side planned to take depositions of psychologists, sociologists and family counselors “saying that children are better off in opposite-sex relationships.”
Gay rights advocates hope to get judges to focus on a different issue -- whether laws, including Proposition 22, forbidding same-sex marriages violate the California Constitution’s ban on discrimination. Each of the five test couples was chosen to illuminate a different aspect of that argument.
Early in the week leading up to the weddings, Kate Kendell, executive director of the National Center for Lesbian Rights, called Del Martin, 83, and Phyllis Lyon, 79. The two were poised to celebrate the 51st anniversary of their relationship on Valentine’s Day. They would become the first couple to marry, offering an example of a long-established lesbian relationship.
Alexandra D’Amario, 38, and Margot McShane, 34, were next. McShane was at work in San Francisco when an ACLU lawyer called to see if the pair wanted to participate. D’Amario, pregnant with twins, was on her way to work as a therapist in Concord, across the bay. She didn’t hesitate.
“I whipped the car in the other direction,” said D’Amario, 38, who shares a home with McShane in Napa.
She thought about her mother, who died unexpectedly in September and always taught D’Amario to stand up for what was right. She also thought about the twins, four months along, and the rights and protections she wanted for them.
“I just feel that anything that’s discriminatory is wrong,” she said. “I just think it’s important in this time in America to get active.... I can’t wait to have children so we can bring them into court.”
Jeffrey Wayne Chandler, 43, and David Scott Chandler, 40, country music and dance lovers who have been together 11 years, spoke in their court declaration of the problems they faced when a child they had through a surrogate parent was born prematurely and died. The San Francisco couple had to delay burying the dead child to complete legal paperwork that a married couple would not have been troubled with, they said.
Another couple, Sarah Kristen Conner, 35, and Gillian Zartha Smith, 34, of Oakland, suffered through two difficult years when one was homebound with a disability.
“Being married provides us with important protections that we know will be critical to us when future hardships arise in our lives,” they said in their court papers.
A fifth couple, Cristal Rivera-Mitchel and Theresa Michelle Petry, both 43 and San Francisco residents, remain unmarried but hope to wed in the future. They are in the case to represent the harm that would be caused if a court ordered the marriages to halt.
Until recently, leading gay rights groups had shied away from test cases over same-sex marriage. Their initial focus was on court challenges to anti-sodomy laws across the country. That litigation achieved final victory last year when the U.S. Supreme Court declared criminal sodomy laws unconstitutional.
As the sodomy cases moved through the courts, gay rights lawyers also worked on custody rights for lesbian mothers. During the last decade, the battle has shifted to domestic partner rights.
Those efforts provided useful lessons.
“What we saw was that many states would interpret their state constitutions as being more protective of rights of equality and liberty than under the federal Constitution,” Davidson said.
Even as the major groups hesitated to test laws on marriage, individual couples brought cases in Hawaii and Alaska. In both states, the gay couples won court fights, but then saw their victories overturned by referendums that amended their states’ constitutions to ban marriage by same-sex couples.
Legislators in more than a dozen states are now debating making similar changes to their constitutions. Although most states have laws defining marriage as a union between a man and a woman, gay rights lawyers could challenge them as discriminatory under the states’ constitutions.
There is also a growing movement to amend the U.S. Constitution to prevent gays from marrying throughout the country. But such amendments are extremely rare.
Gay rights groups, impressed by the earlier legal victories in Hawaii and Alaska, finally decided to prepare a legal challenge themselves
In Vermont, gay “lawyers and community groups went downtown to Kiwanis clubs, PTA meetings, church picnics, you name it,” said Kendell of the National Center for Lesbian Rights. “Wherever five or more people were gathered, there were average Vermonters who just happened to be gay to talk about the issue.”
Vermont’s high court eventually ruled that the state had to provide gay couples whatever state benefits were given to married couples. The Legislature passed a civil union law in response.
The movement next targeted Massachusetts, selecting that state because it already had many laws protecting gay people. In the biggest court victory for the same-sex marriage movement so far, Massachusetts’ high court ruled in November that gays must be permitted to wed.
Massachusetts legislators deadlocked earlier this month on an effort to amend the state Constitution to limit marriage to male-female couples, and are scheduled to resume a constitutional convention March 11. Even if the legislators can agree on how such an amendment should be written, it could not take effect for two years. Marriage licenses have been ordered to be issued by May 17.
By contrast, “the approach in California has been more incremental, trying to get people the best legal protection available,” said Tamara Lange, an ACLU lawyer involved in the San Francisco litigation. “The strategy has been more legislative here.”
The battle for gay marriage stems in part from the legal efforts of lesbians to retain custody of their children during the 1970s. At the time, gay men were more interested in issues of sexual freedom, Stewart said.
“I remember going around and trying to raise money, and the men would be, ‘Why do we care about families? Families are used against us,’ ” Stewart said. “And then AIDS came along, and it changed everything.”
Gay men found themselves barred from their partners’ hospital rooms. When partners died, families swept in and took everything they had owned, leaving their lifetime lovers with nothing. Partners who left work to care for sick lovers were not entitled to government benefits.
“The guys woke up,” Stewart said.
The younger generation of gay men also helped turn the focus to domestic issues. Unlike many in the previous generation, they wanted families and saw no reason why they should not have them. Gay male couples began adopting children.
Now that the marriage issue is before state courts, lawyers are looking to the state’s highest courts for clues on how it might rule.
Experts who follow the California Supreme Court have said it would be less likely than its Massachusetts counterpart to approve gay marriages.
But gay rights lawyers hope that the justices, who are based in San Francisco, are sympathetic because they have a lot of personal exposure to gays and lesbians in the city and probably on their staffs.
The justices can look from their chambers in San Francisco across the street to City Hall, where couples of different ages and races have been lined up around the block to marry, many with children and parents in tow.
The jurists may even have heard from their offices the San Francisco Gay Men’s Choir serenade the brides and grooms: “Going to the chapel, and we’re going to get married,” and the blaring of horns in support as couples emerge from City Hall waving marriage certificates and tossing bouquets to the crowd.
For all those reasons, gay rights lawyers believe that California may prove to be an ideal test case for their movement.
“I believe [that] with the benefits of five years’ hindsight, we will view this as a watershed moment in lesbian and gay couples achieving full equality,” Kendell said.
She added: “If we lose, I buy you the champagne.”