State leads the nation in gay rights
No matter what voters decide this November on same-sex marriage, the election will not change one fact: Over the last decade, California has become the nation’s leader in providing legal protections to gays and lesbians.
This has happened not just because of high-profile gestures like San Francisco Mayor Gavin Newsom’s decision to issue the nation’s first same-sex marriage licenses in 2004 but also because of a carefully crafted campaign to enact laws in the state Legislature and push for court decisions to support and enhance the new rights.
The changes have delighted some Californians and alarmed others.
Gay rights have been expanded in “little bites that people found hard to argue with at the time,” said Matt McReynolds, staff attorney of the conservative Pacific Justice Institute. “And all of a sudden, we are at a point where gay rights trump religious rights.”
Among the protections guaranteed in the state:
* Schools must protect gay teenagers from being taunted about their sexual orientation.
* Churches that receive state funds for nonreligious services such as day care can’t refuse to provide those services to gays and lesbians -- even if the church’s doctrine opposes homosexuality.
* And doctors must extend the same kind of fertility treatments to lesbians hoping to conceive that they do to heterosexual women.
Geoff Kors, executive director of Equality California, a pro-gay rights group, disputes the allegation that gay rights threaten religious liberties. But he doesn’t disagree with McReynolds when it comes to what his group and others have accomplished.
“In work, at home, and in all aspects . . . we’ve had such great advancement,” he said.
The earliest protections gays and lesbians enjoyed in California stemmed from court decisions. In 1914, when Long Beach police arrested 31 men accused of being part of a gay sex ring, most went free thanks to a California Supreme Court ruling that oral sex was not “a crime against nature,” Yale law professor William N. Eskridge Jr. wrote in a legal brief.
In 1951, California’s high court became the first in the country to rule that police could not shut down bars simply because gays frequented them. In 1961, it invalidated police spying in men’s bathroom stalls and held in 1969 that public schools could not fire teachers for being gay.
The ruling that would figure most prominently in the same-sex marriage decision did not involve gays. In 1948, the court became the first in the country to strike down a law that barred interracial marriage, ruling that people have a fundamental right to marry the person of their choice.
Legislative action on gay rights lagged far behind court decisions until the mid-1990s, when openly gay and lesbian officials began to win election to public office.
State Sen. Sheila Kuehl (D-Santa Monica), a Harvard Law School graduate who was the first openly gay lawmaker in the Capitol, recalled what it was like when she got to Sacramento in 1995 and introduced an unsuccessful bill to extend protections to gay students.
“It was a nightmare,” she said. “The speeches that people would make. . . . No one held back at all, talking about the most outrageous things about gay people.”
The second openly gay member of the Legislature, Sen. Carole Migden (D-San Francisco), who arrived two years after Kuehl, recalled an incident in which Sen. Peter Frusetta (R.-Tres Pinos) stood up in a hearing on Kuehl’s student bill and talked about homosexuality in livestock.
“I’ve seen thousands and thousands of cattle,” he said, “I’ve probably seen three . . . maybe four that had the hormone imbalance of being odd, unnatural. . . . [They would] shy away from bulls and take up with other heifers.”
But the Legislature was changing, in part because it was becoming generally more liberal and in part because of the presence of more gays and lesbians.
Early on, the legislators made a decision to push for incremental changes rather than plunge straight into polarizing issues like same-sex marriage.
The first step came in 1999, when Kuehl finally got her education bill passed and signed by Gov. Gray Davis. During the same session, Migden won passage of the state’s first domestic partner protection bill, which allowed gay partners to register but afforded them few additional rights.
The backlash began almost immediately. The next year, state Sen. Pete Knight championed Proposition 22, a state ballot initiative that defined marriage as only between a man and woman. (That law, which was approved by more than 60% of the voters, was invalidated this year by the California Supreme Court.)
But despite the passage of Proposition 22, proponents of gay rights were beginning to build momentum, both sides say.
Lawmakers had become comfortable voting for gay rights bills. And they saw that many of their constituents supported those bills, said Kors, of Equality California. Also, Kors’ group and others were quick to give campaign contributions as rewards to legislators who voted for gay rights bills.
In 2003, then-Assemblywoman Jackie Goldberg won passage of a domestic partner law that gave same-sex couples many of the rights married couples have in such areas as custody and community property.
During its most recent session, the Legislature -- which now includes five openly gay members -- approved five more gay civil rights bills, bringing the total in the last 10 years to 50.
The progress has been so substantial, Kors said, that “the vast bulk of achieving equality for LGBT people legislatively has been accomplished in California.”
Some legislators were uncomfortable with the rapid changes and the pressure to vote with the majority. Assemblyman Anthony Adams (R-Hesperia) said that although he supported some of the bills, including provision for domestic partnerships, he does not support gay marriage.
He said he voted for domestic partnerships out of “respect and understanding” but that now people who support partnerships but not marriage are being “abused and maligned.” This, he said, “can only lead to a greater degree of mistrust in any future debate.”
As the Legislature passed more gay rights laws, the California Supreme Court found itself handling more cases involving gay issues.
Six of the seven sitting justices, including Chief Justice Ronald M. George, were appointed by Republican governors. But the justices considered themselves bound to uphold the Legislature’s intent.
“The court has shown an independent history of holding that lesbian and gay people are entitled to equal protection,” said Shannon Price Minter, legal director for the National Center for Lesbian Rights. “But the court also relied heavily on the enormous body of legislation passed by the California Legislature.”
As the Legislature was passing domestic partnership bills, the court grappled with cases involving child support and custody in lesbian parent disputes.
Between 2002 and 2005, the court decided four parental rights cases involving lesbians, and the rulings reflected a growing consensus by the court that more gays were having families and that discriminatory laws were affecting their children.
The cases “educated the court significantly, and they got the court thinking about the families that gay people form,” said Jon W. Davidson, legal director of Lambda Legal.
Gay rights advocates had long believed that putting the question of gay marriage to the courts prematurely could set their movement back. Newsom’s 2004 decision to marry same-sex couples -- a move that took many gay and lesbian groups by surprise -- guaranteed that the marriage debate would end up in the courts.
The activists were careful in choosing which cases to press. Two prominent plaintiffs in the legal battle for marriage rights, for example, were Del Martin and Phyllis Lyon. They had been together more than half a century; Martin died this year.
In the time it took for the cases to climb from the trial court to an appeals court and finally the high court, the Legislature twice approved same-sex marriage bills, only to have the bills vetoed by Gov. Arnold Schwarzenegger, who said courts should decide the issue.
The high court’s decision came on May 15, in a 4-3 ruling written by George. The majority gave same-sex couples the right to marry, and California’s became the first state high court in the country to give sexual orientation the same legal protections as race and gender.
Even if Proposition 8, the state constitutional amendment that would ban gay marriage, passes in November, most of the other rights and protections of the last decade will remain.
But the loss of marriage rights, which carries a powerful symbolic weight, would be a painful setback to the gay rights movement.
“This is a watershed because it gives a chance to give an up or down approval of the direction taken,” said McReynolds of the conservative Pacific Justice Institute. He hopes that things have “finally reached a point where millions of people in this state have had enough.”
Advocates for gay rights say the momentum is on their side. They are hoping the courts, like the Legislature, will continue to be sensitive to the concerns of gays and lesbians.
Gay rights activist Kors knows one way to help ensure this: Press for more gay men and lesbians on the bench.