ARTICLES

Chaos

San Francisco's Gay Marriage Revolution

BY MARIA KENNEDY

San Francisco mayor Gavin Newsom's decision to ignore California state law by ordering the San Francisco county clerk to issue a marriage license to an elderly lesbian couple on February 13 created an uproar across the nation. Reaction to Newsom's decision was swift. Pro-family groups denounced the mayor for ignoring Proposition 22, which defined marriage to be "between one man and one woman." On the other side of the debate, homosexual groups applauded Newsom for his bold move.

According to a February 15 San Francisco Chronicle story, Kate Kendell of the San Francisco-based National Center for Lesbian Rights, said that Gavin Newsom was the perfect candidate because he is "a straight Irish Catholic man married for two years." In December 2001, Newsom was married at Saint Ignatius church on the campus of the University of San Francisco. One source, who asked not to be named, said that Newsom created a receiving line during communion: "as people came up for communion, Newsom shook their hands and handed them communion." A call to Jesuit Father Charles Gagan, pastor of Saint Ignatius church, to confirm or deny this, was not returned.

Newsom says that he decided to direct San Francisco county clerk Nancy Alfaro to issue marriage licenses for homosexual couples after hearing President Bush's state of the union address in January. In his address, the president called for a constitutional amendment to ban homosexual marriage. According to the February 15 Chronicle story, Newsom directed his staff to research the possibility of issuing marriage licenses to homosexual couples. Knowing that pro-family groups would oppose the move, Newsom told his staff to work "quietly." Though California law states that marriage is between a man and a woman, Newsom's staff decided to proceed on the grounds that denying homosexual couples the right to marry was a violation of the equal protection clause of the California constitution. Newsom then ordered Alfaro to ensure the documents pertaining to marriage licenses were gender neutral.

On Thursday, February 12, a court holiday, Newsom and a crowd of handpicked guests witnessed a "wedding" of the two elderly lesbians. The fact that February 12 was a court holiday prevented pro-family groups from filing a lawsuit, asking the courts for an injunction against the city issuing marriage licenses to homosexual couples.

On Friday, February 13, two lawsuits were filed against the city of San Francisco -- one by Randy Thomasson and the Campaign for California Families and the other by the Alliance Defense Fund on behalf of the Proposition 22 Legal Defense and Education Fund. Both lawsuits allege that the city and county of San Francisco have violated California state law and the California constitution by issuing marriage licenses to homosexual couples. The two San Francisco superior court judges who heard the actions that day, Judge Ronald Quidachay and Judge James Warren, refused to grant a temporary restraining order, thus allowing a carnival-like scene to continue at the San Francisco city hall as throngs of homosexuals raced there in order to get marriage licenses. According to a February 24 San Francisco Examiner article, Warren, a homosexual, is being challenged by conservatives who say he will not be impartial. In denying the request for an injunction, Warner pointed out to both sides that much was at stake and required "careful consideration." He then ordered another hearing on February 17.

Emboldened by the judge's ruling, Newsom ordered the city hall to continue to issue marriage licenses throughout the three-day weekend, which included Valentine's and President's day. Responding to Newsom's defiance of state law, Matt Staver, general counsel of the Liberty Council, who is representing the Campaign for California Families, said, "Mayor Newsom has lost his mind. Government officials, including even the mayor of San Francisco, must obey the law. We are a nation ruled by law, not by power-hungry, renegade, radical activists."

In spite of the setbacks, on Tuesday, February 17, pro-family groups were back in court again asking for an injunction against Newsom. By the end of business on Monday, February 16, 2,271 couples had been married at the San Francisco City Hall. On February 20, Judge Quidachay combined the two cases against Newsom, Alfaro, and the city and county of San Francisco. Saying that the city would be proactive, San Francisco city attorney Dennis Herrera sued the state of California, challenging Proposition 22 on the grounds that it is discriminatory.

Governor Arnold Schwarzenegger's jumped into the debate by posting on his web site a statement that the state would not recognize the marriage licenses issued to homosexual couples. "The marriage certificates submitted to the Department of Health Services by the city and county of San Francisco fail to meet legal standards," Schwarzenegger told delegates at the February Republican convention. State attorney general Bill Lockyer's spokesman said that the governor did not have any authority over the attorney general. "He can direct the Highway Patrol, he can direct Terminator 4, but he can't direct the attorney general," said the spokesman. On February 27, Lockyer asked the California supreme court to decide whether or not San Francisco officials are violating state law. "For almost 30 years, the State of California has defined marriage as a union between a man and a woman," Lockyer said. "The law is clear. Individuals and government entities that object to statutes may work to change them through the legislative or initiative process. But unless an appellate court strikes the law down as unconstitutional, state statutes must be followed, and they must be enforced."

On February 25, the Alliance Defense Fund filed an action with the state supreme court against San Francisco county clerk Nancy Alfaro. Alliance Defense Fund chief counsel Benjamin Bull said in a statement that his organization has no choice but to file the action, since "the California attorney general has expressed political sympathy for the issuance of same-sex 'marriage' licenses and simply cannot be trusted to defend the law." The Pro Family Law Center has filed an application to remove the mayor of San Francisco, as well as San Francisco's attorney general and city clerk for violating state law. The petition is the first step in a civil lawsuit.

Constitutional scholar Douglas Kmiec of the Pepperdine School of Law pointed out the chaos Newsom's actions have wrought. "Mayor Newsom -- having taken an oath to enforce the law -- has disregarded it. No waiting for a court to deliberate, no respect for the legislative choices of the California assembly in the Family Code, and not even a modicum of deference for the people who by initiative overwhelmingly reaffirmed that only marriages between a man and woman are valid. Mayor Newsom may fancy himself a civil rights advocate. He is, in fact, an outlaw, and his advocacy that he can interpret the state law to suit himself is just so much blather.

"As for the courts, the fact, that they have not immediately put a stop to [Newsom's] usurpation of authority is contrary to textbook legal principle, etched not in the faux civil liberties of this homosexual day, but at a time when the law denied basic human rights on the irrelevancy of skin color. Because Martin Luther King, Jr. understood the harm to the rule of law by even well-considered civil disobedience, he willingly went to the Birmingham jail to make the powerful argument that segregation laws were unjust. Mayor Newsom is no Martin Luther King, Jr.

"But there is a larger issue," continued Kmiec, "and that is, drawing distinctions on the basis of race is irrational; maintaining definitional distinctions premised upon the millenia of marital history is not. The reality of nature is that men and women are capable of having children; same-sex couples cannot. Every society, including this one, depends on these children to take up the duties of governance, of work of the mind and of the hand, and of forming community. Sociological and empirical studies confirm that mothers and fathers bring unique gifts to the moral and educational formation of children. These are absent where the genders present in the household are the same. Just ask a single parent who struggles to play both roles. Such efforts are heroic, but the odds are long; and far too often they mean higher rates of child poverty, weakened health, or educational failure."

Kmiec, though admitting that "marriage is about more than procreation and the proper direction of succeeding generations," insisted that "Mayor Newsom's bald-faced claims of counterfeit equality overlook the irreplaceability of the civilizing agency of the traditional family altogether. The mayor, of course, is new to his office, but I challenge him to describe any public or private entity in San Francisco or elsewhere that can so effectively transform human interest to not only think of ourselves but also to indulge the charitable impulse of sharing and being accountable to others. In this, traditional marriage is the ballast for a consumerist society organized with an invisible-hand that, if left unchecked, can be heavy-handed indeed."

Kmiec acknowledged the difficulties of defending traditional marriage, since, he said, "it is hard for advocates of traditional marriage to point with unqualified pride to their track record. Levels of divorce are far too high. Every divorce truly is the death of a small civilization." But if, in our time, marriages have been unstable, "cohabiting relations are, on average, far more unstable, and there is no credible body of literature to disprove the supposition that same-sex relationships would not have more in common with their cohabiting, rather than married, counterparts. Indeed, in Europe where there has been longer experimentation with civil union concepts, that has been the case. The unions are all too short-term."

Kmiec said that "each of these points requires greater study and deliberation, and having read much of the literature, I know they can be argued in different directions. Because that is the case, empirical judgments such as these are best informed by legislative determination informed by general experience. This constitutional means of reasoning, unfortunately, was something the activist judges in Massachusetts spurned as they upset that commonwealth's marriage laws, and of which Mayor Newsom has manifested little inkling."

Some homosexuals have complained that the law forbids them to visit their "partners" in hospital, since they are not members of the same immediate family. But to accommodate such a concern, said Kmiec, the government need not change the character of marriage. "A mayor who wanted to meet the concerns of the common good might be better advised not to redefine the reality of human nature," said Kmiec, "but to propose legislative change that would eliminate in law distinctions in health care or elsewhere that understate the value of friendship, whatever the orientation of one's friend."

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