Marriage Bill Teeters In California

Vote on measure open until Friday in gay-friendly Assembly, but tally six votes shy

A bill that would legalize gay marriage in California teetered between passage and failure in the state Assembly as of press time Wednesday.

But even if the bill does not pass by the Legislature’s deadline of midnight on Friday, after clearing two committees of the state Assembly and coming within a few votes of victory, it will have traveled further than any legislative attempt at legalizing gay marriage anywhere in America.

Advocates, including the bill’s author, San Francisco’s gay assemblyman Mark Leno, had intended to bring it to a vote Tuesday. Then he postponed the vote until Wednesday, when there was a heated floor debate.

Opponents called the bill a contravention of “the laws of nature, how nature works.”

Leno quoted a letter of support from the National Association for the Advancement of Colored People, which said that “different laws for different people have no place in our society.” The NAACP was one of more than 300 organizations that weighed in in favor of the bill.

Assemblywoman Lois Wolk, a Democrat from rural Yolo County, said that the bill, for her, was a civil rights issue. Advocates say that the bill’s progress was made possible by a strong gay and lesbian caucus in the Legislature. Six members of the Assembly and Senate are gay or lesbian, and Wolk said that “she couldn’t look colleagues and their children in the eye and vote no.”

But even with the support of the Assembly’s Speaker, Fabian Núñez (D-Los Angeles), by late Wednesday evening the measure had just 34 of the 41 votes required to pass. In California gay rights have become a litmus-test party-line issue, and the bill got no Republican votes in the Assembly.

Same-sex marriage opponents claimed that several of the Democrats who made up Leno’s hoped-for, but razor-thin majority succumbed to their intense lobbying campaign.

If it does clear the Assembly, barring unforeseen complications in the Senate, the bill will go to the state’s Republican governor, Arnold Schwarzenegger, who has made conflicting statements about his position on the issue.

California already has a domestic partnership registry and one of the most comprehensive legislative packages of protections for gay and lesbian couples. The state’s gay rights lobby, Equality California, has been the lead advocate for the bill and has focused its energies on this effort, almost to the exclusion of other issues, because, its executive director Geoff Kors said, all other rights will follow once gay unions are given the same legal recognition as heterosexual ones.

But it is also a political weapon aimed at California’s Republican governor.

Schwarzenegger threatened war on the Legislature’s Democratic majority recently, raising money from conservative groups nationwide to fund initiative drives to cap state spending, loosen the control of the state’s teachers unions on hiring and firing procedures and, most significantly for the long term, change the way Assembly and Senate districts are drawn to weaken the Democrats’ majority in the Legislature.

Schwarzenegger’s popularity has been slowly eroding since he became governor by sweeping Democrat Gray Davis out of office in a recall election in October 2003. Unions drew 10,000 to the Capitol lawn last week to jeer the governor, and his approval ratings are now at a low point.

But the politics of gay marriage are a no-win for the governor. The state is sharply split on the issue; and a Los Angeles Times poll from February 2004, during the San Francisco gay marriage honeymoon, found that while about a third of Californians thought same-sex couples should be allowed to marry, another quarter oppose any form of gay unions. Thirty-eight percent were somewhere in the middle then, favoring favor civil unions. So if the bill makes it out of the Legislature, no matter what the governor does, he will anger about equal numbers of Californians.

The tight vote in the Assembly and Schwarzenegger’s remarks on the subject reflect the divide in the state. In a November “Tonight Show” interview, the government said he would be “fine” with same-sex marriage if voters approved it and said he had “no use” for a national constitutional amendment that would ban it. If the court ruled gay marriage legal, Schwarzenegger said he would not have a problem with that.

“Let the people decide,” Schwarzenegger said.

Then in a later interview on MSNBC’s “Hardball,” he allowed that success in the Legislature might have the same weight for him as a direct vote of the people or a Supreme Court ruling. “This is, again, something that the Legislators can do, the people can do, or the court can do,” he said.

In the first hearings on a constitutional challenge to the state’s marriage laws, a Superior Court Judge ruled in March that “that no rational purpose exists for limiting marriage… to opposite-sex partners,” after the City of San Francisco and advocacy groups sued the state in a series of cases stemming from Mayor Gavin Newsom’s marriages last year.

The judge, Richard A. Kramer, compared the state’s ban on same-sex marriage to antiquated laws that created “separate but equal” racial segregation and prohibited interracial marriage.

Opponents said they will appeal the ruling, which will probably move to the state Court of Appeals before going to the California Supreme Court—in roughly a year.

A court decision would also roll back California’s year 2000 Proposition 22 that declared that “Only marriage between a man and a woman is valid or recognized in California.”

The language of that amendment would appear to override Leno’s bill. But when the measure, which passed by a 61 percent margin, was finally entered into the state code, its prohibitions were included only in the sections about marriages from other states—not in the sections about marriages entered into in California, so advocates are claiming it does not prohibit them.

Pending arguments about that distinction, Leno’s bill could take effect as early as January 1, 2006.

“The sky did not fall in the state of Massachusetts to my knowledge,” joked Newsom at an ebullient press conference after Kramer ruled.

Ultimately popular opinion will determine if gays and lesbians will be allowed to marry in California. In May, gay marriage foe Randy Thomasson and his Campaign for California Families introduced a constitutional amendment that would not only ban gay marriage in the state, but would also roll back the provisions of California’s domestic partnership laws.

Another major anti-gay group, Lou Sheldon’s Traditional Values Coalition, did not join Thomasson, leading gay rights advocates to speculate that Sheldon’s group would file an amendment with different language that would only same-sex marriage.

Gay marriage advocates are crowing about the divide in the anti-gay ranks. And they are mounting their own campaign. Kors estimates that advocates will need to spend between $15 and 20 million to defeat an anti-gay marriage amendment.

The only question, advocates like Equality California’s Geoff Kors say, is what exactly they will be fighting over. That will depend on what happens to Leno’s bill, and what the state’s courts decide.

So today the situation is as confused as Gov. Schwarzenegger was when he weighed in for the first time on gay marriage, on a radio show during the recall election campaign in 2003.

“I think that gay marriage is something that should be between a man and a woman,” he said.