History of How it All Came to Be

THE BATTLE OVER SAME-SEX MARRIAGE
Uncharted territory
Bush's stance led Newsom to take action

Rachel Gordon, Chronicle Staff Writer
Sunday, February 15, 2004
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It was only his 12th day as mayor of San Francisco, but Gavin Newsom decided that night -- the very night he attended President Bush's State of the Union address in Washington, D.C. -- that he was going to defy California law.

And turn the nation on its ear.

Attending the president's Jan. 20 speech as a guest of House Minority Leader Nancy Pelosi, Newsom listened closely as Bush voiced his strong support for outlawing same-sex marriage -- with a constitutional amendment, if necessary.

Not long after the speech, Newsom called his chief of staff, Steve Kawa, a gay man who was at home with his partner and their two children. "He told me that he wanted to do something,'' Kawa said.

Two weeks later, during a staff meeting, Newsom dropped the bombshell on his top aides: He wanted them to explore how the city could start issuing marriage licenses to gay and lesbian couples.

Kawa said the mayor asked staff to gather as many legal briefs, news articles and other background information as they could. Added his communications chief, Peter Ragone, "He also wanted it done quietly.''

Within 24 hours, Kawa was on the phone with Kate Kendell, executive director of the National Center for Lesbian Rights, a San Francisco-based public interest legal organization.

Her reaction: "Oh, my God, you're kidding me,'' Kendell said in an interview Saturday. "It was a mixture of 'wow,' and 'oh s -- .' "

It was the first time, Kendell said, that a mayor of an American city wanted to take such an initiative. And Newsom, a straight Irish Catholic man married for two years, was the perfect politician to take on the fight, she said.

That weekend, Feb. 7-8, Kendell got on the phone with other gay rights leaders and lawyers to feel them out. She particularly wanted to gauge the response in Massachusetts, where a political showdown was looming over the same-sex marriage debate after the high court there ruled that limiting marriage rights to heterosexuals was unlawful discrimination.

"Would we be doing anything to hurt them? What would the ripple effects be,'' Kendell said. She had the same sort of questions with colleagues in Washington, D.C., where Congress is considering a constitutional amendment to prevent gays and lesbians from marrying.

"There wasn't unanimity that this was the right time,'' she said.

Last Monday, first thing in the morning, Kendell, Kawa, the mayor's policy director, Joyce Newstat, ACLU attorney Tamara Lange, Geoffrey Kors of the gay rights advocacy group Equality California and a handful of other top staffers in the mayor's administration met behind closed doors in a ceremonial room in the mayor's suite at City Hall.

"We talked about the legal issues. We talked about the politics,'' Ragone said.

"A lot of us started to personalize the issue, our own stories started coming out,'' said Kawa, who said he has had three life wishes: to have a family, to be an out gay man in public service and to get married.

The group also started talking details. The California Family Code states that marriage is a union between a man and a woman.

They decided to proceed on the grounds that denying marriage licenses to gays and lesbians violates their rights to equal protection under the California Constitution. They looked at the marriage license documents and determined that they would need to make the language gender neutral. Words and phrases such as "bride'' and "groom'' and "unmarried man'' and "unmarried woman'' would have to be changed.

There was also talk about which couple they should ask to be the first to tie the knot. Kendell suggested Del Martin and Phyllis Lyon, lesbian rights pioneers who celebrated their 51st anniversary on Valentine's Day.

After the meeting, Newsom's aides walked down the wood-paneled corridor to his office and briefed him on the possibilities. That afternoon, they contacted the city attorney's office and asked for help.

Then they started giving key people the heads up.

They called the offices of Pelosi and U.S. Sen. Dianne Feinstein. They alerted Secretary of State Kevin Shelley, state Attorney General Bill Lockyer, the city's two gay supervisors, Tom Ammiano and Bevan Dufty, and national Democrat Committee chairman Terry McAuliffe.

Massachusetts Rep. Barney Frank called Newsom. The veteran gay representative told the mayor to drop the idea -- the time wasn't right.

Late Tuesday afternoon, the administration released a letter that the mayor had sent to the county clerk's office, which issues marriage licenses. It requested that San Francisco try to find a way to not discriminate against gay and lesbian couples wanting to get married.

By Wednesday morning, Newsom was surrounded by TV, print and radio reporters while he was providing lunch to seniors in Japantown. He announced that he wanted to move quickly on the same-sex marriage issue, but wouldn't say when.

That afternoon, Kendell, from the National Center for Lesbian Rights, put in a call to Lyon, 79, and Martin, 83, asking whether they wanted to get married. The answer came back 10 minutes later: "Yes.''

Newsom held a staff meeting Wednesday night. By 10 p.m., the decision was finalized to issue the first licenses to same-sex couples Thursday.

On Thursday morning, Lyon, dressed in a blue pants suit, and Martin, in a purple one, slipped quietly into City Hall. So did Kendell and Roberta Achtenberg, who was a civil rights attorney before she served on the Board of Supervisors and later joined the Chamber of Commerce as a senior vice president.

Few others knew what was about to take place inside the assessor's office. Debra Chasnoff, the Academy Award-winning documentarian, was invited to film the ceremony, and two Chronicle staffers were allowed to witness it. In all, about 20 people were on hand, including mayoral aides, selected civil rights attorneys and two other couples preparing to take their vows after Lyon and Martin. Newsom steered clear.

He asked City Assessor/Recorder Mabel Teng, who oversees the clerk's office, to officiate. But first she had to be deputized to perform a marriage.

Martin and Lyon had trouble filling out the forms because they couldn't remember the required personal information about their parents. Martin, long ago married, was pushed when asked to recall when she got a divorce. Kendell paid the $82 filing fee. The couple borrowed two rings, and at precisely 11:06 a.m., the ceremony began.

Those who orchestrated the scene succeeded in keeping it secret, a goal all along to keep opponents of same-sex marriage from trying to prevent the ceremony from taking place.

By Friday afternoon, as scores of same-sex weddings were being performed, opposition lawyers were in court trying to get an emergency injunction to stop what they termed municipal anarchy. The judge told them to come back Tuesday, when the legal battle will begin in earnest.

Kendell said she was stunned by the magnitude of what Newsom unleashed.

"I feel the weight of history, in a way that I never felt before,'' she said. "It is remarkable and profound.''

As for Newsom, who came into office as a moderate, he credits George Bush for what happened.

"I was at the State of the Union,'' he said, "and I felt a real resolve on this issue.''

E-mail Rachel Gordon at rgordon [at] sfchronicle.com.



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