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Ramifications of Same-Sex Marriage Debate

by Dan Waterhoise
One queer's view of the possible ramifications of the same-sex marriage debate in California.
Gay Marriage–Too Much, Too Soon?

In the months following the November 2004 election, storm clouds may loom on the horizon for gays and lesbians. Sparked by the furor over same-sex marriage, the storm could see the clock spun backwards to before Stonewall or Harvey Milk.
The Radical Right is hoping for a determination in California by judicial fiat that glbt people are, in fact, mentally ill.
Also in California, two bills have been introduced to amend the state’s constitution to repeal California’s domestic partner laws, as well as to define marriage as only between a man and a woman.
The Democrats are busily trying to reinvent themselves in a way that they can win elections again.
And, “mainstream” glbt organizations are trying to disassociate themselves from the gay marriage issue. Like the Democratic Party, the groups are trying to find ways to broaden their appeal to “moral values” voters.
The judge hearing San Francisco’s challenge to California’s marriage laws denied the city attorney’s motion that evidence refuting opponents’ claims become part of the case record. Opponents had submitted claims contending that gays and lesbians are indeed mentally ill, that children need opposite-sex parents and that homosexuals can be cured.
Superior Court judge Richard Kramer had refused to remove the declarations by opponents of same- sex marriage from the case file or to let the city present contrary authorities. He said he intends to base his ruling on legal arguments, not factual disputes -- a sign that Kramer may not think the statements already submitted contain anything that needs to be refuted.
San Francisco’s attorneys are worried that those claims standing by themselves might be used by an appellate court to justify the state's definition of marriage as a union between a man and a woman. Under appellate rules, absent a ruling from the trial judge, anything in the record that supports the trial court’s decision is assumed to be true unless rebutted.
There’s a bigger concern that no one is talking about–yet. The ‘judicial fiat’ might be used to justify banning glbt people from certain professions–such as teaching. The Radical Right in California is very vocal–saying that gay and lesbian teachers, as well as the Gay Straight Alliance, are busily ‘recruiting’ young people in the public schools–and that all of them should be banned. There was an initiative floating around in 2004 to ‘ban the teaching of homosexuality’ in the schools–it failed to qualify for the ballot. But the evangels wouldn’t mind reprising the Briggs Initiative of 1978 if they thought the climate was right..
The ‘fiat’ could also be used to deny us adoption or legal custody of our kids.
There’s a real possibility that, for the sake of political expediency, the Democrats will desert the gay community. The party is already looking to ‘spin’ its position on abortion to be “more inclusive.” And, recent news reports clearly indicate the Dems would like to distance themselves as far as humanly possible from ‘gay’ marriage or ‘civil unions,’ too.
One of the two candidates for the Democratic national chair is opposed to abortion. Tim Roemer of Indiana, a candidate for the chairmanship (with backing from the Dem congressional leadership), says the party should encourage adoption and support both parental notification laws for minors and a ban on late-term abortions.
“We must be able to campaign in 50 states, not just the blue states or 20 states,” Roemer told the Los Angeles Times late in December.
Given the fact the Democrats want to be seen as being as “moral” as the Republicans, the party might decide it “needs” to be “more inclusive” on glbt issues.
Are the Democrats looking to become “Democans?”
The position–against–that the Central Valley’s Democrats usually take on gay issues may become the norm in California.
The Traditional Values Coalition is betting on it.
At the behest of the Coalition, Republicans introduced two bills, one in the Assembly and the other in the Senate, on the first day of this legislative session. The bills seek to place on the ballot a measure that would repeal the domestic partner laws as well as define marriage as only that between a man and a woman.
In order to get on the ballot, the bills must receive a two-thirds vote of both houses. It might seem safe to say that these bills have a snowball’s chance in Hades of getting that two-thirds vote. But is it?
The way these bills have been packaged puts the Democratic majority really on the spot. If they vote “no” in order to support the domestic partner laws, their vote will be spun to say they “support gay marriage.” That’s a minefield for a California politician–remember, Proposition 22 passed overwhelmingly.
The Democrats may, to protect their political backsides, play along and give both bills the super-majority required to put them on the ballot. The courts would then have to step in. California law does not allow multiple issues to be decided by any one initiative measure. In the past, the second issue would be removed from the ballot, however this last election, the courts ruled an initiative could be “split” in two and both issues decided in that election. Voters may find themselves deciding both the fate of the domestic partner laws and the definition of marriage at the same election.
In a late December story, the San Francisco Chronicle quoted Matt Coles of the ACLU’s Lesbian and Gay Rights Project as believing the chances of a national constitutional amendment banning same-sex marriage as “unlikely.”
The story indicated the unlikelihood of an amendment was not “entirely by accident.”
He added that many of the cases now in the courts were filed by individuals not affiliated with leading gay rights organizations. He said, “frontline groups have held off. People think that neither the country nor the courts are ready for it and probably we’ll lose. Nobody likes to take cases and lose.”
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