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'You can't just change marriage...'

SAME-SEX MARRIAGE: AN ORAL HISTORY

Prop. 8 defender Andrew Pugno relives the battle and looks ahead to what may be next.

May 26, 2009|Andrew Pugno

Andrew Pugno, at 22, went to work for then-Assemblyman Pete Knight in 1995. Knight asked Pugno to guide AB 1982 -- aimed at prohibiting California from recognizing gay marriages from other states -- through the Legislature on his behalf.

Since then, Pugno has been a tireless advocate in the fight against gay marriage, serving as the chief attorney in efforts to defend Proposition 22, the successful 2000 voter initiative that defined marriage as being only between a man and a woman, and Proposition 8. (Knight died in 2004.)

When Hawaii's courts were threatening to create same-sex marriage there, we looked at California law and discovered that California would recognize it too, unless we clarified state law. It was closing a loophole, you might say. That's what AB 1982 was designed to do.

The bill became very contentious. It actually passed the Assembly by a single vote, and then went to the state Senate, where it was bogged down with hostile amendments. It was a one-page bill, but majority leaders added 100 pages of hostile amendments to it.

On the Senate floor, there was an effort to take out the hostile amendments and pass the bill by itself. It came down to a 20-20 tie. Majority leaders had to find then-Lt. Gov. Gray Davis and bring him back to the Capitol to cast the tiebreaking vote. He cast the vote that killed the bill.

We tried again and failed in 1997 [by then, Knight had become a state senator]. So Knight essentially gave up on the Legislature and wrote what became Proposition 22.

There were two things that were remarkable about that election. First, the vote for Proposition 22 was much stronger than our polls indicated.

Second, advocates of gay marriage tried to stay away from the issue of gay marriage. Instead, they tried to vilify Knight, to make it personal. They called it the Knight Initiative. Nobody called it that except them. He was not out in front. He was not giving speeches. But they insisted on making it a referendum on the person, not the issue. At the time, there was very little support for same-sex marriage; it was probably the best strategy they had.

Starting in 2001, there were state agencies essentially violating Proposition 22, ignoring it by treating same-sex couples as married for certain legal purposes. I'd left Knight's office, but at his request, I ended up litigating cases to defend Proposition 22. It was very natural to be defending it in court, having worked so hard to get it passed in the first place.

Then, in 2004, Gavin Newsom, the mayor of San Francisco, just decided to start issuing same-sex marriage licenses. It was so clearly unlawful. It just can't be the case that any local government official can just decide not to follow the law. I was opening my own practice, and one of the earliest cases I was working on was the case in which, ultimately, the California Supreme Court said that the mayor didn't have authority to issue marriage licenses.

That is when the "marriage cases" began -- on the heels of Mayor Newsom losing that case -- new cases filed to have Proposition 22 struck down.

We'd already begun the petition process to begin qualifying Proposition 8 for the ballot, as a safety net in case the state Supreme Court ruled against Proposition 22.

For Proposition 22, each side spent less than $10 million. For Proposition 8, it was closer to $40 million per side. In the case of Proposition 8, the court had changed the definition of marriage, and we were restoring the old definition. Marriage is a union of a man and a woman. You can't just change marriage by saying it has a new definition.

A significant factor in the campaign was the possibility of voter sympathy for same-sex couples taking advantage of the new law. However, I think that the images most voters saw brought into focus that same-sex marriage is not marriage at all, that it is something else, and actually helped the campaign.

I think that if Pete Knight were alive today, he would see that all of his hard work has not been in vain.

The growing minority population in California will strengthen support for traditional marriage. Today's younger voters will be tomorrow's older voters. Their views will likely evolve as they have children of their own.

This issue has been so strongly debated that there are very few people who are undecided. And very few people's opinions will change. The polls indicate that, since election day, there has been no continued slide in the percentage of voters who want to protect marriage for a man and a woman.

I think the argument that gay marriage is inevitable is completely wrong. I think we are headed toward what you see in Europe, where traditional marriage has been protected but there are alternative relationships recognized by governments to provide benefits and protections. That will be the equilibrium that we will ultimately find.

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