What is to be Done?  A Measured Approach for 2004

Which brings us back to 2004 and the presidential election. At the end of the day, both John Kerry and Edwards decided that discretion is the better part of valor when it comes to same-sex marriage. They may yet be proven right. Perhaps Bush’s extreme position on a same-sex marriage ban in the Constitution, like Pat Buchanan’s bellicose “culture war” speech at the 1992 GOP convention, will scare independent, centrist voters. But given the stakes in the 2004 election and the absolute need to defeat George Bush, Kerry and Edwards don’t have much wiggle room to lead, rather than follow, public opinion on this one.

What is to be done?

Not follow the lead of San Francisco mayor Gavin Newsom, for one. Newsom, a promising and courageous politician, unilaterally initiated the flood of same-sex marriages in the city over Valentine’s weekend. His February 10, 2004 letter to the County Clerk stated “the California courts have interpreted the equal protection clause of the California Constitution to apply to lesbians and gay men and have suggested that laws that treat homosexuals differently from heterosexuals are suspect.” Newsom instructed the clerk’s office to perform same-sex weddings, as it was his sworn duty to uphold the California Constitution.

Unfortunately, and despite the best of intentions, Newsom’s actions have triggered a backlash, including the divisive amendment to the Constitution backed by Bush. Even a prominent supporter of gay marriage as Congressman Barney Frank said that “I was sorry to see the San Francisco thing go forward…If we go forward in Massachusetts and get same-sex marriage on the books, it's going to be binding and incontestable.” Frank rightly points out that not only has San Francisco become a diversion, it creates the lasting impression that gay marriage advocates among elected officials promote the notion that unpopular laws can be broken or ignored. In that sense, Newsom appears little different than Roy Moore, the former elected Chief Judge of the Alabama Supreme Court who was unseated for refusing a federal court judge’s demand that he remove a two-ton monument of the Ten Commandments he had erected on courthouse property.

So what can Democrats do to support the rights of gay couples within the constraints of the tensely charged political atmosphere of 2004?

1. Win the Presidential Election at All Costs. If Bush retains the White House in 2004, all of the above will be largely an academic exercise. No “Bush Court” stacked with the states’ rights crowd of the Federalist Society is going to recognize same-sex marriage, Loving, Romer and Lawrence be damned.

2. Encourage Individual Challenges to DOMA and Similar State Provisions. As in Massachusetts, individual couples should bring suit against state statutes and the Defense of Marriage Act. Municipal and state officials should support them, but (unlike Newsom) should not initiate them.

3. Discourage Unilateral Steps by Elected Officials. Supporters of gay rights cannot afford to be labeled as hypocrites and be lumped in with the likes of an ethically-challenged reactionary like Roy Moore. Officials should support individual litigants, but otherwise obey laws on the books (like California’s) in the interim.

4. Oppose Same-Sex Marriage Constitutional Bans. Whether at the federal or state level, progressives should oppose all same-sex marriage bans that its opponents would seek to constitutionally enshrine.

5. Support Civil Unions as a Steppingstone Measure. Where it is proposed, civil union legislation should be supported.

6. Reposition Same-Sex Marriage as a Family-Friendly Institution. Progressives must wage a PR battle to establish gay marriage as enhancing, not threatening family, values. One compromise might be to trade domestic partners’ benefits for marriage rights. That is, all benefits (financial, estate, legal, adoption, etc.) for all couples, gay or straight, would be tied to marital status.

1. States' Blights:  Introduction
2. Here Comes the Judge
3. Public Acts, Compelling State Interest, and the Santorum "Man on Dog" Test
4. What is to be Done?  A Measured Approach for 2004