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State leads the nation in gay rights

Incremental victories in the Legislature and the courts will remain even if Prop. 8 wins.

October 09, 2008|Maura Dolan and Jessica Garrison | Times Staff Writers

No matter what voters decide this November on same-sex marriage, the election will not change one fact: Over the last decade, California has become the nation's leader in providing legal protections to gays and lesbians.

This has happened not just because of high-profile gestures like San Francisco Mayor Gavin Newsom's decision to issue the nation's first same-sex marriage licenses in 2004 but also because of a carefully crafted campaign to enact laws in the state Legislature and push for court decisions to support and enhance the new rights.

The changes have delighted some Californians and alarmed others.

Gay rights have been expanded in "little bites that people found hard to argue with at the time," said Matt McReynolds, staff attorney of the conservative Pacific Justice Institute. "And all of a sudden, we are at a point where gay rights trump religious rights."

Among the protections guaranteed in the state:

* Schools must protect gay teenagers from being taunted about their sexual orientation.

* Churches that receive state funds for nonreligious services such as day care can't refuse to provide those services to gays and lesbians -- even if the church's doctrine opposes homosexuality.

* And doctors must extend the same kind of fertility treatments to lesbians hoping to conceive that they do to heterosexual women.

Geoff Kors, executive director of Equality California, a pro-gay rights group, disputes the allegation that gay rights threaten religious liberties. But he doesn't disagree with McReynolds when it comes to what his group and others have accomplished.

"In work, at home, and in all aspects . . . we've had such great advancement," he said.

'Evolving policy'

The earliest protections gays and lesbians enjoyed in California stemmed from court decisions. In 1914, when Long Beach police arrested 31 men accused of being part of a gay sex ring, most went free thanks to a California Supreme Court ruling that oral sex was not "a crime against nature," Yale law professor William N. Eskridge Jr. wrote in a legal brief.

In 1951, California's high court became the first in the country to rule that police could not shut down bars simply because gays frequented them. In 1961, it invalidated police spying in men's bathroom stalls and held in 1969 that public schools could not fire teachers for being gay.

The ruling that would figure most prominently in the same-sex marriage decision did not involve gays. In 1948, the court became the first in the country to strike down a law that barred interracial marriage, ruling that people have a fundamental right to marry the person of their choice.

Legislative action on gay rights lagged far behind court decisions until the mid-1990s, when openly gay and lesbian officials began to win election to public office.

State Sen. Sheila Kuehl (D-Santa Monica), a Harvard Law School graduate who was the first openly gay lawmaker in the Capitol, recalled what it was like when she got to Sacramento in 1995 and introduced an unsuccessful bill to extend protections to gay students.

"It was a nightmare," she said. "The speeches that people would make. . . . No one held back at all, talking about the most outrageous things about gay people."

The second openly gay member of the Legislature, Sen. Carole Migden (D-San Francisco), who arrived two years after Kuehl, recalled an incident in which Sen. Peter Frusetta (R.-Tres Pinos) stood up in a hearing on Kuehl's student bill and talked about homosexuality in livestock.

"I've seen thousands and thousands of cattle," he said, "I've probably seen three . . . maybe four that had the hormone imbalance of being odd, unnatural. . . . [They would] shy away from bulls and take up with other heifers."

But the Legislature was changing, in part because it was becoming generally more liberal and in part because of the presence of more gays and lesbians.

Early on, the legislators made a decision to push for incremental changes rather than plunge straight into polarizing issues like same-sex marriage.

The first step came in 1999, when Kuehl finally got her education bill passed and signed by Gov. Gray Davis. During the same session, Migden won passage of the state's first domestic partner protection bill, which allowed gay partners to register but afforded them few additional rights.

The backlash began almost immediately. The next year, state Sen. Pete Knight championed Proposition 22, a state ballot initiative that defined marriage as only between a man and woman. (That law, which was approved by more than 60% of the voters, was invalidated this year by the California Supreme Court.)

But despite the passage of Proposition 22, proponents of gay rights were beginning to build momentum, both sides say.

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