March 12, 2000

Voters across the nation, with the infinite wisdom so often attributed to "the people", cast their ballots in the primaries Tuesday. It looked like a super Tuesday for the status quo, and very little else. Gay Republicans who held any illusions of a gay-friendly or event gay-tolerant White House, next term, might do well to consider a vote for the Democratic offering. Boring, perhaps, but safe. Gore probably can't outspend the Republicans (the parties just splurge on different sets of prioritities), so the economy's safe, "sort of".

Pretty mealy-mouthed advice coming from a registered Libertarian, if you ask me.

I wanted to say a few words about the California primaries, specifically, about California Propositions 21 and 22.

Prop 22 passed, joining California with the other 31 states which already refuse to recognize any marriage of a gay or lesbian couple, if legally performed out of state. As everyone knows, gay marriage is currently not legal in any state. This was a "spoiler" proposition, re-introduced by state senator Pete Knight, after an abortive attempt with Knight's same measure failed in 1996. The measure was backed by the Catholic Church, and by heavy money from the Salt Lake City Mormons.

As almost everybody now knows, Knight's own son is gay, and broke the family silence to fight his estranged father's measure.

Exit polls indicate that most pro-22 voters do not think of themselves as homophobic. I don't think I need to elaborate on this view to the gay community. The rationale popularized by Knight's propaganda machine is that this was not a vote against gay rights or gay civil liberties, but a vote "to preserve the sanctity of marriage."

This contrast between "sanctity" and "gay marriage" isn't missed in our community, either. Nevertheless, it became clear that a lot of otherwise level-headed, gay-tolerant heterosexuals felt a need to draw a line, to desert tolerance in favor of a ritualized institution.

In other words, it turns out there are a lot of "I'm not homophobics" who are (big surprise). It also turns out there's a surprising reservoir of people who generally support gay rights, but who, in the case of equality in religious or civic marriage, draw the line.

I've said it before. I'll say it again. Many folks who don't even go to church hold on to a cherished idea of the "sanctity" of marriage. Despite the contradictions all around us, I'm not going to be the one to say they're wrong. The message I get from this sub-group is, "we support anything you want -- just don't call it 'marriage'."

And I don't care what we call it, either. Just give us our civil liberties. In fact, I have yet to meet a gay or lesbian holding out for the word "marriage". This raises an interesting hypothesis, perhaps worthy of testing in 2002. Given that the gay community knows that the term "marriage" has been used as a smoke-screen by the religious right (redefining the issue out of a context favorable to gays) -- shouldn't we be pushing for expanded "domestic partnership" or "civil union" rights?

Leaders in the gay community were predicting Prop 22 would pass, and that this wasn't necessarily so bad after all. I concur. There is now a compelling and recognizable argument for the need to bolster domestic partnership laws, which currently have little or no federal status. California's Governor Gray Davis did enact a domestic partnership statute in January, giving limited rights to gay and lesbian couples who register under the act.

Current rights include hospital visitation rights, limited power of attorney, and a number of other immediate concerns for domestic partners. In no way does it approximate for domestic partners the fully automatic rights bestowed upon married heterosexual couples, such as tax benefits or legal standing in probate proceedings.

Gay leaders point out that Pete Knight brought these critical issues before the public eye in a way the Governor, or the gay community itself could scarcely have managed.

Put bluntly, Prop 22 is a tremendous public relations coup for the gay community. Additionally, some extremely powerful (and tasteful) media spots by gay organizations brought these issues to focus in a way that clearly demonstrates a need for full domestic partnership laws.

I am predicting we will get them, possibly even in my own lifetime.

On the other hand, the other proposition, Prop 21, is a good argument why we may never get domestic partnership rights. Civil rights are in trouble in this state, period.

I want to discuss Proposition 21 by way of example, without exploring all of its ramifications. It's not our fight, yet it is.

For the benefit of non-Californians, Prop 21 (which passed) is a draconian measure ostensibly aimed at curbing juvenile crime. It provides for mandatory adults trials and mandatory sentences for juveniles accused of "gang-related" conduct.

Nowhere that I can see is "gang-related" defined, either in the text of the proposition, or in public discussion. By default, "gang-related" would be up to the discretion of the District Attorney's office.

The juvenile jail population in California has doubled in the last 10 years, and by "jail" we're given to understand this excludes statistics for juvenile homes and ranches ... we're talking about adult jails and penitentaries.

"Gang-related" is about as vague as you can get. It has all of the specificity of other catch-phrases like "offensive to community standards". According to any given DA, it could mean being caught in a bodily assault with the Crips or Bloods. According to another, it might mean wearing black clothing to school.

If you follow civil rights issues, you're already aware of this. It's "guilt by association", and you can get life in prison for it, which is much worse than the fate dealt "commie sympathizers" during the McCarthy era.

So: how would this work? According to the measure, if your 13-year old nephew is caught standing outside a building, inside which a breaking-and-entering is in progress, and it is discovered at some point he was in the company of the perpetrators, who are discovered to have any kind of gang ties: your nephew could end up with a mandatory sentence of life imprisonment for a first offense, even if it could be convincingly shown that he was guilty of little more than bad judgement for hanging around a bad crowd.

I have no sympathy for breaking and entering, assault, rape, theft or or murder. I just want to see juveniles get the same fair shake in court as white-collar criminals, crooked politicians, and other "respectable" gang members.

I bring this up to show that the electorate isn't particularly interested in niceties of the law such as due process and judicial discretion. "Get tough on crime" has, again, said "to hell with civil liberties, we don't care how you get it done."

Please note that this is the same attitude exhibited by Janet Reno, et al, in Justice's bid to curb "crime on the internet". Because a handful of people hide behind anonymity to commit theft and fraud on the internet, the Justice Department is proposing to strip that privacy for everyone. China and Russia already have this vital "police power" (to wire-tap into all the Internet Service Providers), so why not the United States?

The ballot-box referendum is not known for producing good law, but it sure as hell raises public consciousness.

Prop 22 may be a "Pyrhhic victory" for the gay community. We lost the measure, but won recognition.

Watch for a continuing erosion of civil rights even as specific gains are made under whichever administration we elect in November. This erosion is to be feared, for it will eventually undermine the substance of any specific gains made through legislative or ballot processes. Apart from the frantic cries of the "civil liberties watchdogs", we seem largely oblivious to the underpinnings on which our domestic partnerships and internet privacies depend.

Don't look to a Bush or Gore administration to advance the dialog, either. In the long run, we're all minorities here.

"But if the vision was true and mighty, as I know, it is true and mighty yet; for such things are of the spirit, and it is in the darkness of their eyes that men get lost." - Black Elk

copyright ©2000 by Alex Forbes and La Parola