Love Conquers: San Francisco and Marriage
Just when I thought that this election year was guaranteed to make me bitter and cynical beyond belief, I have a new hero: San Francisco mayor Gavin Newsom. Newsom recently concluded that California’s laws prohibiting marriages between two people of the same sex violate the state constitution’s protections of equal rights for all citizens. Furthermore, he decided to do something about it, and ordered city officials to start granting marriage licenses to gay and lesbian couples.
Now, apart from the fact that I completely agree with Newsom’s stance on same sex marriages, I find his actions inspiring because he saw a situation where he felt the state wasn’t living up to its best ideals and to its obligations, and – let me repeat this for emphasis – he decided to actually do something about it. He took a stand and pressed the issue, forcing Californians and Americans to confront the matter head on. (A recent Salon article suggests that’s par for the course with Newsom.) He did it despite members of his own cabinet – including some of his gay advisors – telling him that Californians weren’t ready for this, that it would cause too much political damage. I am well aware that the rules of the game mean that you have to be cautious with the accumulation and spending of political capital in order to get anything good done, but it feels good, even once in a while, to hear an elected official say “Damn the torpedoes, full speed ahead.”
In doing so, Newsom has accelerated the debate on marriage rights, perhaps even more than Massachusetts’ Supreme Court did with its recent decision that a ban on same sex marriages violates that state’s Constitution; it will be several more weeks before Massachusetts starts issuing licenses. I hold nothing against the Massachusetts Court there – I think an elected executive has much firmer ground to stand on in taking such actions than a judiciary. Both decisions are examples of political courage in a cause that I believe future generations will recognize as just, and they have already inspired other officials to follow suit.
Newsom’s critics have charged that he has placed himself above the law, that even if he’s right about same sex marriages he has an obligation as an elected official to follow the state’s laws. U.S. Rep. Marilyn Musgrave, who is proposing an amendment to the federal Constitution that would define marriage as between a man and a woman and render the San Francisco and Massachusetts decisions moot, made that charge in a debate with Newsom on CNN’s Larry King Live. That angle did give me pause for a few minutes – is the only difference between Newsom and George Wallace that I agree with the former and despise the latter?
But there is a very essential difference, and it’s one that Newsom pointed out in that debate. According to Newsom, there’s a constitutional question that needs to be resolved by the state courts. In order to get that resolution, there needs to be a test case. He’s providing that, and asking the courts to decide the issue. California courts have refused several requests to issue preliminary injunctions against San Francisco, and the case is working its way through the system. Right now the question is whether the state Supreme Court will take the case immediately or whether it will go through the lower courts first, but either way, the issue will be resolved. If Newsom loses and still tries to give out marriage licenses, then he’ll be guilty of a flagrant disrespect for the law and the legal system. I have no reason to believe that he will, not least because the licenses he’d be issuing would be worthless and unrecognized by the state.
As I said earlier, I agree with Newsom and the Massachusetts Supreme Court wholeheartedly. Denying the right to marry to same sex couples is a horrible denial of basic civil rights and basic dignity to a substantial group of people. There was a period of time during which I felt that the notion of civil unions was a worthwhile compromise that would help ease the transition for a population that’s still not comfortable with the notion of same sex marriage – if we can guarantee all the rights that come with marriage under a different name, that’s a good start, and we can work on the semantic issues later. And I still think civil unions are better than nothing. But I can no longer believe that they’re good enough.
For one thing, there’s a symbolic message in civil unions that I find unacceptable, an implication that same sex couples aren’t good enough for real marriage. I think it’s terribly hurtful to inflict that stigma on anyone. Plus, no matter how carefully crafted civil union legislation is, it is fundamentally a separate institution from marriage. The possibility will always exist that future laws will somehow establish differences between marriages and civil unions, and we’ll be right back to separate and unequal. Musgrave’s proposed amendment states that “Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.” I’m no constitutional scholar, but the likelihood that a conservative Supreme Court – which has only just gotten around to narrowly deciding that homosexuality can not be considered a crime, and which could conceivably get far more conservative depending on the results of this year’s elections – would use that language to strike down civil unions is just a little too high for my tastes. Equal rights are not a job that can be done halfway.
There is also an element of personal reflection that has come into my thinking. I’m a white guy; my wife has both African and Mayan ancestry, making ours an interracial marriage. In four years that has not caused us any problems beyond a few people making unfortunate comments in one of our presences. Two generations ago, the situation was far different. In 1948, 30 states had laws on the books barring interracial marriage. (Pennsylvania had fortunately removed its ban in 1780.) That year the California Supreme Court struck down its law; other states soon followed, but as late as 1967, when the federal Supreme Court took up the case of Loving vs. Virginia, 16 states still had the bans in effect.
The Loving case began in 1958, when a white man named Richard Loving married a black woman named Mildred Jeter in Washington, D.C. The two returned to their home in Virginia and were arrested later that year. A trial judge found them guilty, and ordered them to either spend a year in prison or leave Virginia for 25 years. The trial judge wrote the following in his opinion: “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.” Nine years later, the Supreme Court overturned that conviction and declared interracial marriage bans unconstitutional.
Conservatives decried this example of gross judicial activism, but I consider it a good thing that the Court did not choose to wait for public opinion to come around. My wife and I still might not be able to spend much time in Virginia or other states. Alabama did not get around to removing its ban until 2000, even though the ban was unenforceable. Slate reports that the repeal’s sponsor, state Rep. Alvin Holmes, had been trying for decades to get the ban removed. “‘The last time I tried was about three years ago,’ said Holmes. ‘It didn’t get out of committee.’ . . . Holmes wasn’t just tidying up the legal code. In parts of rural Alabama, he said, probate judges still refuse to issue marriage licenses to interracial couples.“
The Christian Science Monitor also reports: “As recently as 1991, the National Opinion Research Center found that 66 percent of white Americans polled opposed a close relative marrying a black man. More recently, a national survey by The Washington Post, the Henry J. Kaiser Family Foundation, and Harvard University found 86 percent of black respondents said their families would welcome a white person. But only 55 percent of white families would respond in kind.”
I should probably offer a caveat here. Some black civil rights leaders are less than thrilled at the comparisons between the black civil rights movement and the question of same sex weddings, arguing that the situations faced by blacks and gays are not remotely comparable. While I am sensitive to their concerns, I am more in agreement with people like U.S. Rep. John Lewis, a veteran of the black civil rights movement and a supporter of same sex marriages. I also think that as a white man in an interracial marriage, I am by far the least oppressed of anyone with a personal stake in either issue, and I find the comparison incredibly compelling. I think about the fact that 40 years ago, it was considered OK for a state to tell me I could not marry the woman I love, that it was a good thing to deny us the right to build our lives together, and I get angry. I think about the fact that right now it’s considered OK for this country to tell two loving gay men or women that they can not do the same, and I start seething. This is a situation that needs to change, and someone needs to get out in front of it. In my case, I am immensely grateful that the Warren Court did not wait for public opinion to come around to make its decision, because without that decision I don’t believe that public opinion would have come around. Fear of the unknown is too great.
And that’s one more reason I admire Newsom. He’s taking away that fear of the unknown. Same sex marriages are happening, with great fanfare and publicity, and the world is not ending. As San Francisco Chronicle columnist Mark Morford writes, “Some homosexual couples have been married for more than three weeks now, living in utter godless sin as they drive their cars and shop and laugh and cry and go to work and pay their taxes and wonder about their dreams. Lightning has not struck them dead. The Hellmouth has not opened wide its gaping maw, hankering for some of the City’s trademark Sourdough o’ Sin. I am dumbfounded.”
To be honest, I’d have thought that an elected official taking a bold stand on principle would be a far more likely sign of the apocalypse than a gay wedding. And in San Francisco we’ve had both, and the world is still turning. It’s almost enough to give a guy a little hope.
About Dave Thomer
Born and raised in Philadelphia. Studied philosophy at Fordham University in the Bronx, where I made many great friends and met my wonderful wife. We moved back to Philadelphia, where I studied philosophy some more and became a teacher. Online and off, I'm looking for ways that we can be better citizens and build stronger communities.