m.bajko@ebar.com

The fight over same-sex marriage returned to the Statehouse and courts this week as legislators reconvened in Sacramento and lawyers filed briefs urging the state Supreme Court to address whether gay and lesbian couples deserve the right to marry.

Assemblyman Mark Leno (D-San Francisco) is hoping he doesn't strike out this year in his third attempt to pass a gay marriage bill. At 1:30 p.m. Monday, December 4, Leno formally submitted to the Assembly clerk the bill, now designated as AB43 and officially known as the Religious Freedom and Civil Marriage Protection Act. The bill would require the state to offer gender-neutral marriage licenses to couples.

"It has symbolic value to it, in that, this is a top priority bill, not only for my office and our LGBT legislative caucus, but also for the Democratic leadership," Leno said, when asked why he introduced the bill on the first day of the new legislative session.

The bill is nearly identical to the one Leno brought forth in 2005. A legislative bait and switch revived the bill in the Senate that year, and an arm-twisting battle in the Assembly mustered up enough votes to pass it, but the bill died at the hands of Governor Arnold Schwarzenegger who vetoed it that fall.

Leno purposefully waited until after the 2006 elections to bring the bill back, and he faces a polar opposite challenge in sending it back to the governor in 2007. The new class of Democratic lawmakers in the Assembly overwhelmingly supports the bill, with 44 lawmakers already pledging to vote for it. A bill needs 41 votes to pass out of the lower chamber.

The fight for votes will take place in the Senate, where Leno is short by one the 21 votes he needs to ensure passage. Leno and same-sex marriage advocates are focusing on three Democratic senators from Southern California to find the last vote they need.

"I would doubt that one vote in the Senate won't be found," said Leno.

The prime target of marriage advocates is newly installed Senator Lou Correa (D-Santa Ana), a former assemblyman from Santa Ana who has stated publicly he supports civil unions and has never received the backing of Equality California, the state's LGBT advocacy group. Correa replaced termed out Senator Joe Dunn, a backer of the marriage bill.

"He is not currently formally in support of marriage equality. We hope we can get him there," said Leno, who donated $3,300, the maximum allowed, to Correa's Senate campaign.

Correa, the first Latino senator from Orange County, voted against an equal benefits bill and was the only Democrat in the Assembly not to vote for a 2004 resolution against a federal marriage amendment. He did give the domestic partner bill AB205 the 41st vote it needed for passage and received strong LGBT support in his razor-thin win in his Senate race this year.

Advocates said Correa should not fear voting for the marriage bill would ruin his political career. Other Orange County-area lawmakers supportive of marriage equality have gone on to win re-election.

"We showed it doesn't negatively affect him," said Equality California Executive Director Geoff Kors, whose organization is a lead sponsor of Leno's bill. "Lou Correa, when needed, has been the 41st vote. He has supported us when we really need him and his vote will make the difference."

Other Democratic senators in the cross hairs of marriage advocates are Jack Scott from Pasadena and Denise Ducheney from San Diego. Both abstained from voting on the bill in 2005 but have strong records of voting for LGBT bills.

"We are doing work in those districts, in particular, to show the members they have a lot of support in their districts for marriage equality," said Kors, who noted seven EQCA board members live in Ducheney's district.

Boosting the lobbying efforts, Senate Pro Tem Don Perata (D-Oakland) is now a co-author of this year's bill and he named out lesbian Senator Carole Migden (D-San Francisco) as Democratic Caucus chair, a position in which Migden will count votes on bills, especially those backed by the Democratic leadership.

"Having both the speaker of the Assembly [Fabian Nunez (D-Los Angeles)] and president of the Senate being supportive of the marriage bill bodes very well for its prospects in the legislature," said Kors. "[Migden] will be in charge of making sure caucus members are supportive of key bills that the Democrats in the legislature are pushing, that includes bills that impact the LGBT community."

In an e-mail response, a spokesman for Migden wrote, "Senator Migden has long been recognized as an integral part of the Senate's Democratic leadership. Regardless of her title, her Senate colleagues listen to her because they respect the intelligence, energy and dedication she brings to tackling California's problems and creating strong public policy to benefit the state's residents. Like always, she will work hard to ensure both the marriage and domestic partnership equality bills [see story, page 1] are approved by the Senate."

There's another advantage in pressuring lawmakers to support the bill – Leno is chair of the Assembly Appropriations Committee and newly installed Legislative LGBT Caucus Chair Assemblyman John Laird (D-Santa Cruz) chairs the budget committee. The Legislature's first out gay male lawmakers now hold powerful sway over what legislators' bills get funded – a tool they can use to muster up votes for LGBT bills.

Having out lawmakers in such powerful posts, said Kors, "gives our community great power in the legislature."

The legislative maneuvering could all be for naught, since the governor has not indicated any change in his position on the issue. Nonetheless, backers of Leno's bill say reviving the marriage equality fight is not a futile exercise.

They point to several key factors that could help sway Schwarzenegger to switch stances, including both his and his wife's current chiefs of staff are members of the LGBT community, something that wasn't true in 2005, and two Republican-appointed appellate court judges ruled this year that it is up to the legislature to decide the marriage issue. The Republican governor had said in his veto statement that the courts (or the people) should decide the issue.

"It is always going to come down to the governor," said LGBT Community Center Executive Director Thom Lynch. "I hope the governor changes his mind and does what he said in the past, which was to leave things to the legislature to decide. I am hoping his re-election and the tactics he used to get re-elected, which was to move to the center, allows him some leeway to change his mind again."

As a courtesy, Leno informed the governor's office prior to Monday that he was reintroducing his bill. He has spoken to Susan Kennedy, Schwarzenegger's chief of staff, about the bill, but declined to disclose the particulars of the talks. However, Leno did say he has not discounted the possibility of seeing the governor sign the bill next year.

"I don't care to conjecture as to how that will play, but certainly, it is always beneficial to have like-minded and friendly voices inside the governor's office," said Leno. "I don't think anyone can honestly say or claim the governor is inflexible relative to positions he takes on issues. He has shown himself many times to have an open mind, take in more information and change his position 180 degrees."

Log Cabin California Director James Vaughn said he intends to both be in Sacramento to advocate for the bill when it is debated in February, as well as lobby the governor and his staff to support the bill.

"I don't think it is a lost cause. Log Cabin's role this time around is to work with the governor to address his concerns," said Vaughn, who met last week with John Kabateck, the governor's director of external affairs. "We will also be looking to see what happens with the court, that is more likely to happen before a vote of the people."

Supreme Court asked to hear case

On the legal front this week, state Attorney General Bill Lockyer petitioned the California Supreme Court to take up the marriage issue once again and uphold a Court of Appeal panel decision earlier this year that found it is not unconstitutional to restrict same-sex couples from being married.

The Supreme Court stepped into the marriage fight in 2004 when it ordered San Francisco to stop issuing marriage licenses to same-sex couples. The court ruled that Mayor Gavin Newsom had no authority to legalize gay marriage but left it up to the lower courts to decide on whether the state's anti-gay marriage laws were unconstitutional.

A San Francisco judge ruled in 2005 that California's exclusion of same-sex couples from marriage discriminates on the basis of sex and violates the fundamental right to marry under the California Constitution. Lockyer and two anti-gay groups appealed the decision to the appellate court.

Last month gay rights groups and City Attorney Dennis Herrera filed appeals of that decision with the state Supreme Court. In an unusual move since he won at the appellate level, Lockyer filed his own brief Monday, December 4 urging the court to hear the case.

In a statement announcing his decision, Lockyer stressed that a ruling from the high court is necessary not only because the issue is of extreme importance and interest, but because the court should provide "conclusive resolution" in the matter.

"[T]he legality of same-sex marriage remains an issue of direct, personal importance to same-sex couples and their families. As this court previously noted, the decision by San Francisco officials to authorize, perform, and register thousands of same-sex marriages 'created an unusual, perhaps unprecedented, set of circumstances.' Those couples married in San Francisco have since seen their marriages invalidated and waited as the Superior Court and the Court of Appeal reached opposite conclusions about whether the state is constitutionally compelled to authorize same-sex marriages. Like all Californians, these couples rightly expect the final resolution of this controversy to come from the State's highest court," said Lockyer's statement.

The California Supreme Court has no deadline in deciding whether it will agree to review the same-sex marriage litigation.

In addition to Lockyer's brief, the court has received a request from an anti-gay group to be reinstated into the case. The appellate justices found that both Proposition 22 Legal Defense and Education Fund and the Campaign for California Families lacked standing to sue San Francisco officials over the marriage issue.

The fund petitioned the court to reverse that decision. The city filed its own brief on Monday requesting the justices deny the anti-gay group's request.

"Although San Francisco's decision to issue marriage licenses to couples of the same sex in 2004 created an ideological and political conflict between the city and the fund, whose avowed mission is to ensure the continued restriction of marriage to one man and one woman in California, this disagreement is insufficient to give the fund standing to seek declaratory relief. Standing requires a showing of potential injury, but the fund's members face no invasion of their legal interests if the current marriage laws are declared unconstitutional," Herrera states in his brief.

As for the Campaign for California Families, its president Randy Thomasson wasted no time last week attacking Leno's bill. Even before it had been resubmitted, Thomasson issued a statement saying, "As Californians prepare to celebrate Christmas, the Democrats have declared war upon marriage between a man and a woman. To continue to push for full-blown 'gay marriage' licenses is unlawful, unconstitutional, and undemocratic."

Thomasson's group mailed and faxed commitment forms to every California state legislator, asking them to protect marriage for a man and a woman by opposing Leno's bill. He also warned that since "Californians cannot depend on politicians or judges to protect marriage," the www.VoteYesMarriage.com coalition will move forward with plans to place on the ballot a constitutional amendment that would "permanently protect marriage for one man and one woman."