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The rite stuff
What’s the surprise issue of the 2004 presidential race? Try same-sex marriage.
BY DAN KENNEDY


SAM DONALDSON was sputtering — hardly atypical for him, but understandable under the circumstances. The veteran ABC News personality was moderating a forum on gay-and-lesbian issues with seven of the nine Democratic presidential candidates. And Howard Dean, who signed Vermont’s groundbreaking civil-union law when he was governor, was trying to explain how he could be for full equality while leaving the question of same-sex marriage and civil unions to the states.

Donaldson kept pressing. How can you say you’re for equal rights but not for marriage?

"What I believe in is equal rights under the law for every American," Dean replied, explaining that how those rights are guaranteed should be left up to the states. After more of Donaldson’s prodding, Dean interjected, half-jokingly: "I feel like I’m back on Tim Russert’s show." To which Donaldson quipped, "Tim was but a pup when I was doing this in Washington."

A good laugh line, spoiled only slightly by Dean’s lame comeback about George Stephanopoulos. But it wasn’t over. After a few more exchanges in which Dean invoked marriage’s religious significance, Donaldson noted that some straight couples are married by judges, justices of the peace, even ship captains. "Why," he asked, "say that it’s a religious institution?"

"Because it is," Dean responded, then added somewhat testily: "Do you want to keep talking about this, or do you want to move on to the military question?"

Not to pick on Dean. Tuesday afternoon’s forum in Washington, DC, organized by the Human Rights Campaign and webcast live (it was to be shown on C-SPAN as well), was an important moment in the nascent 2004 presidential campaign. In a political culture in which pandering is the highest form of flattery, there were most of the announced Democrats — everyone except North Carolina senator John Edwards and Florida senator Bob Graham — pandering to a constituency that, not too many years ago, was treated as though it didn’t exist.

But the stakes have been raised considerably in just the past couple of months. First, an Ontario appeals court threw out Canada’s prohibition against same-sex marriage, and Prime Minister Jean ChrŽtien announced he would draft a law to implement the court’s ruling. Then, in Lawrence v. Texas, the US Supreme Court overturned the Texas anti-sodomy law in a decision with such legal and moral sweep that the most bitter dissenter, Justice Antonin Scalia, predicted that marriage rights for same-sex couples has become inevitable. Next, the Massachusetts Supreme Judicial Court is widely expected to create a right of marriage — or perhaps, as in Vermont, something like it — when it rules in Goodridge et al. v. the Department of Public Health, in which seven same-sex couples have sued for the right to marry (see "To Have and To Hold"). The SJC missed its informal July 14 deadline, but a ruling could come any day.

What had seemed like a theoretical, far-off goal has suddenly become a real possibility — as well as a hot issue in the presidential campaign. And on Tuesday, the Democrats showed why this vital step toward equality could also prove to be dangerous politically.

The three fringe candidates — Ohio congressman Dennis Kucinich, former Illinois senator Carol Moseley Braun, and the Reverend Al Sharpton — all came out firmly for full marital rights for same-sex couples, although Moseley Braun seemed more than a bit confused about how to implement such a right.

Meanwhile, the candidates regarded as having some chance of winning — Dean, Massachusetts senator John Kerry, Connecticut senator Joe Lieberman, and Missouri congressman Dick Gephardt — favored various forms of civil union, talked about their commitment to gay-rights issues such as the Employment Non-Discrimination Act and hate-crimes legislation, and refused to rise to Donaldson’s bait when it came to the "M" word.

Kerry said that marriage is viewed "culturally, historically, religiously" as a bond joining one man and one woman, and averred that he shares those views. Yet he added that civil unions could eventually lead to marriage — and, well, you know, that might be a good thing. "We will achieve what we can, and then we will see where we are," he said.

Kerry also said that though he — like his fellow Democrats — supports the right of gays and lesbians to serve openly in the military, he wasn’t about to back down from a recent statement that gays may have to be excluded from some missions because of "unit cohesion." No doubt it wasn’t a popular position with the HRC audience, but Kerry tried to make the best of it. "There is a process of transition that you will have to go through," he said. "All I did was try to be honest with people."

Lieberman talked about fighting for gay rights in the Connecticut legislature during the 1970s, and was the only mainstream candidate to use the phrase "gay, lesbian, bisexual, and transgender" — somewhat courageous given the uses to which that could be put in a Republican attack ad.

Gephardt talked about his daughter Chrissie, who left her marriage and came out as a lesbian within the past several years, and who was in the audience on Tuesday. But Gephardt may have lost points for the robotic manner in which he refused to answer the marriage question, saying over and over, "Progress is being made every day."

When Donaldson complained that Gephardt wasn’t answering the question, he replied, "I understand. As I said, we’ve made a lot of progress."

FOR THE HUMAN Rights Campaign, the nation’s largest gay-and-lesbian-rights organization, the sudden infusion of same-sex marriage into the presidential race presents an exquisite dilemma. All nine Democrats support gay-and-lesbian issues to varying degrees; eight support marriage or civil unions, with Graham the only holdout.

But faced with having to decide between a candidate who supports full marriage rights (say, Kucinich or Sharpton) and a candidate who has an otherwise good record on gay issues and who might actually be electable (say, Dean or Kerry), the HRC may simply choose not to choose.

Last week David Smith, the HRC’s communications director and senior strategist, told me that the organization may not endorse any of the Democrats rather than choose between an unelectable marriage proponent and someone who might actually win, but whose gay-rights platform falls somewhat short of perfection. "A primary endorsement is certainly not something we’ve decided on, and what you’ve put your finger on is why," Smith said, adding the HRC will look at "the totality of the candidate’s record."

HRC executive director Elizabeth Birch said more or less the same thing at the conclusion of Tuesday’s forum, telling the audience, "We will not make any endorsements until well, well into the primaries." Birch is a savvy political operator who knows that the Democratic nominee is likely to be chosen within just a few weeks of the opening bell. Which means the most likely interpretation is that the HRC wants to be with a winner, as long as that winner is generally supportive of gay-and-lesbian rights. Marriage can wait — or be left in the hands of the courts.

Polling data show why. According to a report by the National Gay and Lesbian Task Force’s Policy Institute, a majority or a plurality of Americans favor what Justice Scalia (once cited by George W. Bush as his favorite Supreme) recently referred to as "the so-called homosexual agenda" — inheritance rights, Social Security survivor benefits, nondiscrimination in the military, adoption, sexual privacy, and the like. But the country is divided on civil unions, 49 percent to 49 percent, according to a Gallup Poll study cited by the report. And the public opposes marriage rights for same-sex couples.

According to a CNN/USA Today/Gallup Poll conducted in late June, 39 percent of Americans support the right of gay and lesbian couples to marry and 55 percent are opposed. Just seven years ago, the margin was 27 percent in favor and 68 percent against, so public opinion is obviously moving in the direction of greater equality. But it’s not there yet.

"As long as you don’t call it marriage, people don’t seem to have a hell of a lot of trouble with it," says Boston-based Democratic political consultant Michael Goldman, whose most recent presidential campaign was Bill Bradley’s in 2000. "It becomes harder and harder to be opposed when you actually know someone — a friend, a co-worker, or a family member — who is gay, and who is a kind, compassionate person."

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Issue Date: July 18 - 24, 2003
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