Another ballot box brawl

California braces for a gay-marriage initiative showdown.

Published October 28, 1999 10:00AM (EDT)

The new century's first major brawl at the ballot box will occur in California, where in March voters will rule on a measure that would ban gay marriage. Since the Golden State is often a crucible for political trends, this referendum is expected to be a bellwether for future initiative wars around the country.

Unlike many complex ballot measures, the Defense of Marriage initiative is but a single, simple sentence: "Only marriage between a man and a woman is valid or recognized in California."

Sponsored by conservative state Sen. Pete Knight, the measure is shaping up to be another in the series of multimillion-dollar ballot battles that have been waged in California in recent years, including the polarizing anti-immigration (Proposition 187) and anti-affirmative action (Proposition 209) initiatives that have had profound political consequences inside and out of the state.

Defense of Marriage opponents say the law is unnecessary, since homosexual marriage is currently prohibited under state law, and that the referendum is simply the first step toward a full-scale attack on gay rights.

"Thirty different states have passed this through the legislative process," said Mike Marshall, who is spearheading the campaign against the initiative. "And they're using this as a legal foundation to go into the courts and try to overturn local non-discrimination ordinances, domestic partner ordinances and having states not recognize gay and lesbian relationships."

But Defense of Marriage spokesman Rob Stutsman said the law is simply a preventative measure that was made necessary when President Clinton signed the Defense of Marriage Act in 1996, which created a federal definition of marriage that prohibited same-sex unions and encouraged states to pass new marriage laws. Some states have interpreted this as an opportunity to redefine marriage, Stutsman suggested.

"Vermont had the case argued in their Supreme Court," Stutsman said. "If they give the OK to same-sex marriage, there would be an open question as to whether those marriages would be recognized in California. This measure allows California to avoid those types of redefinitions."

Jon Davidson, supervising attorney of the Lambda Legal Defense and Education Fund in Los Angeles, said that if the initiative is passed, it could tangle the state in a web of litigation.

"It's totally clear that the Knight Initiative is adding a section to the California family code that only a marriage between a man and a woman is valid," he said. "It essentially creates an anti-gay exception to the law that says that marriages in other states must be recognized in California."

The legality of this type of state legislation has not been tested in any state, because no state currently allows same-sex couples to legally marry. But, Davidson said, cases currently before the state supreme courts of Vermont and Hawaii could change all that. "The courts could rule any day and legalize same-sex marriage in those two states."

The federal Defense of Marriage Act essentially said that states should not be required to recognize same-sex marriages from other states. But there is still an ongoing legal debate over whether the federal government has the authority to make such a law. Davidson pointed to the U.S. Supreme Court's overruling of a recent California welfare law that would have provided lesser benefits to people who move to California from other states.

"The court said the law violated right of interstate travel and commerce," Davidson said. "I think there's a similar argument to be made here."

The battle over Defense of Marriage comes on the heels of protracted and ugly fights over Prop. 187 and Prop. 209, which clogged the courts and turned recent California elections into highly emotional referenda. In 1994, Proposition 187, which sought to take away benefits from undocumented immigrants, passed with nearly 60 percent of the vote. The initiative became the touchstone of Gov. Pete Wilson's reelection campaign, but was later overturned by the courts, and newly elected Democratic Gov. Gray Davis later intervened to stop an appeal of the court's decision.

In 1996, initiative warrior Ward Connerly launched the first of what has become a series of initiatives across the country aimed at eliminating affirmative action programs. Proposition 209 also passed with more than 55 percent of the vote and is still on the books.

Defense of Marriage opponents are already raising the possibility that voters will shy away from another divisive issue -- call it initiative fatigue.

"This really speaks to what kind of state we're going to live in in the next century," said Marshall. "It's very clear that the voters are tired, regardless of how they voted, of having to chose sides on emotional issues. In order to get people to vote yes, proponents of the Knight initiative have to play to people's fears and prejudice."

The measure has split the family of its sponsor, Pete Knight. Knight's gay son, David, came out against Defense of Marriage in an editorial that ran earlier this month in the Los Angeles Times. Knight wrote that his father is acting out of "a blind, uncaring, uninformed knee-jerk reaction," and that the elder Knight had "never discussed my homosexuality with me." David Knight also wrote that his relationship with his father ended after he came out three years ago.

Defense of Marriage's Stutsman dismissed the accusation that the measure was an attack on gays. "I refuse to be linked with 209 and 187. We are not running a campaign against anybody. This is something the 'No' side scares up because they know that voters are not on their side of the issue."

The initiative fight comes on the heels of recent hard-fought victories for gay rights in the California Legislature. With their first majority in 20 years, Democrats in Sacramento passed three new gay rights bills, which were all signed by Davis. The new laws extend domestic partner benefits to state workers and extend school discrimination laws to include sexual orientation.

While opponents of the initiative ultimately expect Davis to join them, the poll-conscious governor has been vague about his position on the measure to date. "When he was elected, Gov. Davis said two things," explained Davis spokeswoman Hillary McClean. "That the era of wedge issue politics is over, but that he doesn't think California is ready for gay marriage. Gov. Davis is going to do what he believes is the best policy for California."

Stutsman said the same mode of thinking applies to the initiative supporters. "Californians want to vote for this because they want to keep marriage the way it is," he said. "Polling shows that domestic partnership laws are popular. That's why the governor signed it. [The gay bashing charge] is the only play the other side has in their playbook, and their cries are beginning to sound shrill."

But polling on the initiative shows that the campaign against Defense of Marriage may be working. A Field Poll released Monday found 50 percent of the 1,001 people surveyed supported the initiative, down from 57 percent in August. Numbers on the no side remained relatively stagnant, with 41 percent now saying they are opposed compared to 39 percent in August. Thus, the gap has closed from 18 points to only 9 points in just two months.

While those numbers would traditionally spell trouble for a ballot initiative five months before Election Eay, Stutsman said the simplicity of the issue makes his initiative an exception. "Most people have made up their minds on this issue," he said. "This is not a water bond."

Still, Field Poll director Mark DiCamillo said that either side could emerge victorious in March. "It depends on the campaign. If there were no campaign, you could say that [the poll] is probably tapping into some stable opinions about an issue that's pretty easy to understand. But campaigns can persuade, that's what they're all about."

Like its controversial forebear initiatives, Defense of Marriage is shaping up as an expensive one. The measure's supporters have already raised close to $4 million, according to the most recent fund-raising reports, while the measure's opponents have just crossed the $1 million threshold. The yes side is getting a huge fund-raising assist from some of the state's most powerful behind-the-scenes conservative donors, including savings and loan heir Howard Ahmanson, and Roland Hinz and Richard A. Riddle, co-founders of the conservative Allied Business political action committee.

The Mormon and Catholic churches have also become involved in the issue, publicly calling for the measure's passage, and taking an active role in raising money for the campaign. The churches mounted similar campaigns last year in Hawaii and Alaska, helping pass measures banning gays and lesbians from marrying there.

The state's Catholic dioceses have already contributed close to $360,000 to supporters of the initiative.

The opposition forces have also countered with big donors of their own. Kathy Levinson, the chief operating officer of E-trade, has personally chipped in $300,000 and raised another $200,000 as host of a recent fund-raiser. But Murphy concedes that in the long run, they will not be able to keep pace with the wallets of the supporters. "We're planning on being out-spent, but we're planning on out-organizing them," he said.

For all of the money already pouring into the coffers of both sides, the Field Poll's DiCamillo said there are other issues on the California ballot -- up to 18 measures in all -- that could be more costly than the Defense of Marriage initiative. The huge fights brewing over the reapportionment process, managed-care reform and Indian gaming could wind up costing more than the gay marriage initiative.

DiCamillo said the final outcome of Defense of Marriage will likely be determined by the state of the presidential race in both parties, which will be determined on the same ballot.

"There is a huge party split on this initiative. The Democrats are overwhelmingly opposed, while Republicans tend to be in favor," he said. "The presidential primary will be the driving force behind who votes. If it's a competitive Democratic primary where interest is greatest on the Democratic side, you would expect more Democrats to show up and that could hurt the initiative." Conversely, if there is a tight Republican contest in California, that could facilitate the initiative's passage.

The political strength of GOP presidential front-runner George W. Bush may determine the ultimate fate of the measure. While Bush has endorsed the initiative in principle, he has said that he will not get involved in local issue fights in individual states and has not taken a position on Defense of Marriage. On the Democratic side, both Vice President Al Gore and Sen. Bill Bradley have come out against the measure.

The measure is not the first time California voters have voted on gay rights. In 1978, a measure that would have banned gays or lesbians from teaching or working in public schools was put before the voters. Proposition 6, supported by Sen. John Briggs, ultimately went down to defeat, 58-42, even though early polls showed that 70 percent of Californians had supported the measure when it first qualified for the ballot.

In the 1980s, a number of initiatives aimed at quarantining people with HIV, sponsored by Lyndon LaRouche and William Dannemeyer, were also rejected by voters.

By Anthony York

Anthony York is Salon's Washington correspondent.

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