Get Used to It: Ep. 107, "Same-Sex Marriage"

(typewriter tapping) (upbeat music) - Hi, I'm Sheila Kuehl. Welcome to "Get Used To It". Well, here in Los Angeles, California, it's the end of February, 2004. So guess what we're gonna talk about today? You're right! Gay marriage. Why would everyone else be talking about it and we wouldn't? We have a slightly different take on it, of course. I have three wonderful guests here today to talk about it. The first two guests I will talk to are a married couple. Married in San Francisco on February 15th with a marriage license, Rich Llewellyn and Chris Caldwell. Welcome. Rich is the chief of staff to one of our city council members here in LA, and Chris is a name partner in a preeminent civil rights and litigation law firm here, Caldwell, Leslie, Newcombe & Pettit. See? I got it. And our third guest today is Jenny Pizer, who is a senior attorney at the Lambda Legal Defense and Education Fund here in LA, Lambda being deeply involved in all of the court cases that are now roiling in our California courts about whether or not the city and county of San Francisco had the authority, moral or legal or whatever, to issue these marriage licenses under which, at this point, more than 3,000 people have been married. So that's what we're gonna talk about today. So let's start with the personal stuff, if possible. Rich or Chris or both, and I'd like you, if you don't mind, both to answer and interrupt each other, whatever you do at home. - Whatever we usually do. - Whatever you usually do. How long have you been together as a couple? - 23 and a half years. - And had you talked about, I mean, not that this was a possibility until just recently, but had you talked about, if it ever became legal to marry, that you might want to do this? - Yes. In fact, we'd always, although we always said we didn't wanna get married unless it was a real marriage, either fully legal, or to be honest, a mainstream sort of clerical denomination that was sort of making sort of a public statement of recognition, not just a private one, and so we always wanted to get married. We just were never allowed to. - So how did you come to this decision to go to San Francisco and do this? Give us the story. - I guess the story starts on Friday when with Gavin Newsom's announcement that marriage licenses were gonna be issued, and two things happened on Friday. One, a good friend of mine in San Francisco, a lawyer up there, a straight woman, called and said, "Why aren't you on an airplane?" And she said, "I can't believe you're not here. You gotta come get married." An old close friend, and we didn't do it Friday, but Friday night, I picked up, we have kids, 13-year-old twins, and I picked up our son at, he was at a friend's house, playing, and driving home in the car, we were kind of talking about it, and he said, "So why didn't you go get married today?" And I said something like, "Well, it was a busy day," and he said, "Well, what's more important?" Which, I guess, you know, he had it right, and then Saturday morning, Rich and I got up and looked at the newspaper and saw that the weddings were gonna continue through the weekend, and I turned to Rich and said, "Let's go to San Francisco. Let's get married." - And I have to say, I don't know that, whether all of your listeners believe in God, fate, or whatever they wanna call it, but we were supposed to be out of town for the weekend, and, actually, we had plans to go out of town, had a completely free calendar, and we were gonna go out of town with our kids, that only fell apart Friday night late. - [Chris] After we packed our backs. - And so, you know, if we'd been out of town, it's not that we might not have done it later, but sort of I think God was sending us a sign. - [Sheila] And did your kids go with you? - [Chris] They did. - So you went up the next day, Sunday the... - [Chris] We actually went up on Saturday. - Oh, wow. - We were on a- - And it was Valentine's day! - That's right, we were on an 11:00 a.m. flight to the Bay Area. Actually, our daughter's line when we told her, you know, "Get your bag packed again. We're going to going to San Francisco." and she said, "Why?" And we said, "We're gonna go get married." She said, "Aren't you kind of rushing things?" (Sheila chuckles) - That's good. Well, you know, I think, so your kids were supportive. Were they sort of stunned? Are they bothered by this in any way, or have they heard from friends about it one way or the other? - You know, I think our kids are, as Chris mentioned, they're 13-year-old twins, and I think being 13 is not the best age. I don't know about it for you, Sheila. Many of us don't peak at 13, and- (Sheila chuckles) - I didn't either, despite the fact that I was an actor. - You were, you may have been a star, but it's still a tough time, and it's sort of a confused time generally, and so any layer of confusion you put on it, it's just one more layer of confusion they don't need, wherever they come from in their sort of deep souls. They have had some discussion at school. My sense is less than I would've guessed, I think, and I wonder how much of that's just homophobia in schools, not knowing how to talk about it even, but they were game and they were there, and we have to give credit for Robbie for saying we should be doing it, and Rosie for being the sensible one in the family, saying, "You don't need to rush these things." You gotta have one of each, right? - Right. Exactly. So, here you are in San Francisco now. Unfold the story for us. - We got to the line at city hall by about two o'clock. - It was a long line? - Very long line wrapped most of the way around the block. I'd say three quarters the way around the block by the time we got in line. - [Sheila] Bad weather? - Saturday wasn't too bad. It got progressively worse over the weekend, and by Monday, it was a downpour, and Sunday was pretty gray and wet, and, long line, we were told, when we got at the end of this long line, that they were gonna cut the line off at three o'clock, but that everybody who got in line by three o'clock on Saturday would get married. So, and they said it's gonna be long wait, but the spirit was wonderful. The energy was wonderful. People were exuberant and it was very celebratory. - Did other people have their kids in line and family, or? - Strollers were the accessory of choice for these weddings. - Well, I'd have to say our kids were, by their choice and our choice, our choice first, they were back at the hotel, perfectly happy, 'cause we don't have cable, so they had the TVs on and the eyes were glued, waiting for when we call them to come down. All these other kids, there were kids who were in line for hours who were very well-behaved. Those gay and lesbian parents must know what they're doing, 'cause these kids were remarkable for the lines they were in. - Yeah, and so we waited in line roughly four hours on Saturday, and around 5:30, close to six, they came out and said kind of good news, bad news. Bad news is you're not gonna get through the line today. You know, people have been working all day, and it just can't happen, but the good news is you'll get a ticket to come back tomorrow, and with the ticket, you'll be able to go straight in the other door, the back door of city hall, I guess, and so we came back on Sunday morning and then we only had three hours of line-waiting. - We heard that the people who were working in city hall not only worked through that weekend, but were essentially volunteering. They weren't being paid. - They were volunteering, including the Sheriff's deputies. I mean, you know, city staff, it was really, and as I said, I can't emphasize enough how wonderful the energy was, the excitement, not just the people in line, but the people who were working and obviously killing themselves and working very long hours because I think everybody felt they were part of history. - And one of the protocols they set up was, your paperwork, you had to have reviewed at least by two different, and these had to be actually professionals from the clerk's office who knew what they were doing before you got to the front of the line, 'cause they wanted to make certain they were right, and you had to have two different people had signed it to prove that they had been reviewed, and people were so, besides being sort of gracious and sort of happy to sort of be part of history, especially when it came to the paperwork, they were very, very serious about wanting it to be right, because they thought, if they're making their claim for history, they better do it right, so we had people come up to us repeatedly and say, "Let me check your forms again." We've said they've been checked. Let me check 'em again, very polite, but they just wanted to make sure it was right. It was actually, you know, all people say about civil servants. I work in government. These were people who cared about what they were doing and felt they were doing something that was important and were gonna do it right. It was actually very inspiring. - So you got to the front of the line after another three hours on Sunday, and then? - And the front of the line gets you into the office where you get your marriage license actually, which was kind of controlled pandemonium, because apparently the bottleneck in the system was, at that point, there were only six computers that they could actually input the information to get the licenses spit out, and we signed our application for the license. We had to swear in oath that everything on the application was true, which in and of itself was kind of an emotional moment, and then you get the piece of paper. Now, the piece of paper you have at this point is the license that allows you to get married, but even that was just a very emotional, kind of powerful moment. - And, also, the way the lines were set up, because they were much bigger lines than they normally have in sort of the clerk's office, basically, everyone waiting was on sort of the right hand of the hall, in this long, skinny hall, sort of old, beautiful, old '20s building, and so when you came out, you had to basically walk down the entire line with people cheering. - [Sheila] Wow. - You know, every minute another couple would come out holding their piece of paper, and the entire hallway would erupt. - [Sheila] Huh. - You know, some of them just happy, some of them sort of a little embarrassed by, you know, some of them crying. So, that sort of added to, you know, by the time you got there, you'd sort of watch this kind of emotional sort of dance. It was really something. - Which is part of why the three hours was not painful either, because you're seeing these happen. - Constantly people coming out with their licenses. - [Chris] That's right. - And so then what? - Then we went to the Rotunda of City Hall, and the next available officiant performed our wedding. - So they just had people there, people you didn't know, who were officiating at each person's wedding or marriage ceremony? - Although, we were lucky, as it turned out that we ended up on Sunday, because San Francisco City Hall is this beautiful old building, and there were these, again, officials who were, like if you go to the city hall to get married, just judges or deputy commissioners who were volunteering their time, who agreed to do it, and at least, Sunday, the city hall was empty, and so this beautiful room, you got to sort of go off with one hearing officer. Most people didn't have family because it was so quick. - [Sheila] Quickly put together, sure. - And you did have a private ceremony. The day before, city hall was actually booked for a, we were told the rumor in the lines, at least, was a society gay wedding, months in advance, some kind of civil union ceremony, so city hall was sort of off limits. So there were big group weddings sort of off to the side. We got the fancy room at least, and we did have a private ceremony, with just my sister who came up with us, which was wonderful. - [Rich & Chris] And the kids. - And the deputy marriage commissioner who performed it was very solemn and made it a very special moment, and even though there was a line, this was our five to seven minutes, and he took time to talk about kind of the solemnity of marriage and the importance of what we were doing, and then, you know, the kind of bone-chilling moment is taking the vows, which are the same vows that we all heard here, you know, time and time again, as kids and on television. You know, to have and to hold, for richer or for poorer, for better or for worse, in sickness and in health. So, it's the real thing. - Now, I've, of course, had several friends who have, by this time, gone and gotten married, and many of them, like you, have been together for 15, 20, 25 years. Several of them have said to me, they feel different, and, one woman said to me, "Actually, I feel safer," which I thought was a very interesting thing. Do you feel, it's a strange question, because you've been together so long and you have been committed for so long, but does it feel different having solemnized these vows? - [Rich] Yes. - [Chris] Yeah. - I mean, we actually have had a church service as well, and there is something, there are a couple things. One is about the community, even though there weren't many people at this one. It is sort of, the whole point of marriage is it's this sort of public, legal, communal thing about recognition. It's very powerful, and it's funny, you're there, partially as a political statement, partially as a statement about each other, and in that very moment, it becomes this sort of thing, marriage, which is one of the things that Jenny and the lawyers know, that's bigger than just some legal, bigger than some civil union piece of paper, and you do feel different. I don't wanna say it's sort of waking up a whole new life. We have been together a long time, my goodness, 24 years and two 13-year-olds, you know, we have been together, but it is different. There's something very powerful, and it's something you know that that this community deserves and needs, and part of the difference is your own personal one, and part of it's you feel like you're sort of helping move that tide just a little bit, you know? We're just small little ponds, people like you and Jenny are much more important, but that's also powerful. - I think it's actually more powerful, but... - And I actually think, part of what, going through the process was, in some respect, at the same, the moment when we actually said the vows was very special, but I also have to, seven hours of waiting, even though the waiting was fun, and with a lot, it's still the mechanics are not all exciting. What has been part of what's most powerful and wonderful about it has been the reactions of people since then, people at work. I mean, kind of everybody who, you do realize how wonderful and special it is, and not just gay friends who congratulated us, but everybody, and their recognition, that societal recognition, that there something special about marriage and the commitment we've made to each other and the statement we've made. - Well, part of something special about marriage, Jenny, is sort of the legal status that it confers and the benefits that it confers, and, you know, we've been looking at this issue for a long time. I mean, Chris and Rich and their kids were on this show. Do you remember when you were on with the kids and they were so tiny? - A long time ago. - And we were talking about family, and how we essentially invent our families, how we have to construct our families, how we have to put them together, you know, with one piece of paper after another, in terms of sort of creating just contracts and legal agreements about it and how different marriage is, and then we have domestic partnership, and domestic partnership is a legal arrangement, really more contractual, but sanctioned by the state, and then we hear about civil unions because of what Vermont did, which is really just the same as kind of a domestic partnership with all of the rights and responsibilities of marriage, but never quite the real thing, and, now, we are embroiled in this moment of history. It's sort of taken us over, and the question, I guess, on everybody's mind really is, well, here are Chris and Rich and 3,500 couples like them. What's going to be the status of their marriage? And I know you can't answer the question exactly, but give us here in the audience some idea about how you're thinking about it, how Lambda is thinking about it, kind of what the legal basis or lack of legal basis is. - Well, Sheila, first of all, I want to sort of echo what you just said briefly to you guys, not just congratulations, but what you have done and what 3,000-plus other couples have done is what all of this work is about, and your love and commitment and family is why we will win, because your commitment is beautiful, your kids are wonderful, and that's why all of us do this work. So, thank you for doing it and thank you for sharing it. - Thanks. - Thank you. - And I think, ultimately, we will win. It's the history of our country, but that will only be true if all of us do the work that needs to be done, because with every civil rights movement, it takes people caring about the result, and so I'll talk in a minute about some of the legal procedures and the things that may happen there, but I actually think that among the most important things that is happening is that, since the country has witnessed couples becoming married, and to use the over-worn metaphor, Chicken Little, yes, Chicken Little ran into court and said the sky was falling. In fact, multiple Chicken Littles have run into court to say that. The court has been doing its job in pointing out that, in fact, the sky isn't falling, that family is happening, and nothing bad has been shown, and public figures who are not gay, who are elected officials of major cities, not just Mayor Newsom in San Francisco, that has long been a safe place for gay people, but Mayor Daley in Chicago, the mayor of New Paltz, New York, elected officials in many places are standing up to say, you know, these are families, and as an elected official representing people. I recognize that I have gay and lesbian families in my jurisdiction and I care about them, and if they marry, there's not harm in that. I think, in every movement, there can be a tipping moment when the people affected by an issue have been working for a long time, and others who don't appear to be personally affected to have that same stake. I mean, Mayor Daley is a heterosexual Catholic elected official who doesn't have a direct personal stake. The moral authority that he bears as a civic leader has called him to speak out and he's speaking out, and I think that is a critical part of what will dictate ultimate success. Of course, it will also depend on everybody who is lesbian or gay themselves, or cares about somebody, doing the same thing, because, you know, the Chicken Littles continue to say what they say, and those of us who know better, you know, need to speak out. - Well, let's talk a little bit about sort of the legal underpinning of it, because I think people even in California and certainly in other states are either not aware or a little confused about the law here. In the 1970s, the marriage statute in California was amended from saying that it was a contract into which two people entered to saying it was a contract between a man and a woman, partly because, as I understand it, historically, there were a couple of gay couples who had registered their marriage under the confidential marriage statute that we have in California, sort of a little bit of an aberration around the state, and once the legislature got wind of it, they quickly amended, or not so quickly, but amended their marriage statute. So, since the '70s in California, it has said that marriage is a contract between a man and a woman, and then, recently, there was an initiative when we were thinking that there was going to be gay marriages in Hawaii and starting to hear from various parts of the country, there was an initiative in California. The people of California voted to change a different statute that is about recognizing marriages from other states to say that only a marriage between a man and a woman is valid and recognized in California. So that's the statutory basis. In California, like every other state, we have a constitution, and our constitution, as in every other state and the United States' constitution, has some principle in it about equal rights or equal treatment or equal protection, and as I understand it, when people say, "Oh, the mayor has broken the law," to some extent, that's like the Boston Tea Party or the Underground Railroad, or areas where there were laws and people said, "The laws are unjust. Let us test them." So, our law is being tested, right? So we go into court and one side saying, "This is the statutory law." Is the other side saying, "Yes, but it violates the constitution"? - Yes. As you said, just to lay it out systematically, there are two parts of the Family Code, section 300 that has to do with who can marry in California, which, as you say, it has a different sex requirement. One man, one woman, civil contract. Section 308, that has to do with marriages entered into in other states or countries. Section 308 was the section that was amended by Proposition 22. Up to that point, it was very simple and said a marriage valid where entered into is valid here in California, and we had a long history of honoring marriages, respecting marriages that were entered into somewhere else and valid there, even if that couple couldn't marry here. So, Proposition 22 changed that and said we're going to have a special category, different treatment, unequal treatment for the marriages of gay and lesbian couples, even if they're valid someplace else, as, these days, same sex couples can marry in Canada and in Brussels and in the Netherlands, if they qualify based on residency. Valid, legal marriages. California would have honored those marriages, and Proposition 22 says no. The constitution of California has two relevant protections. There's the equality guarantee, and then there's the liberty guarantee, and that guarantee is that individuals and families have a certain type of privacy and autonomy, certain types of decisions in which the state has no business, and the federal constitution has similar promises. So, the government promises to treat everyone equally, not to discriminate on certain bases, and also to stay out of private decision-making. The privacy and the sort of core integrity that a human being has to choose with whom to make a family has been recognized for a very, very long time as protected by that liberty guarantee, and so, you know, Mayor Newsom, who, as an elected official, has taken seriously his oath to uphold the California constitution, understands that, I mean, he has sworn to uphold those guarantees, and that the residents of San Francisco that he's responsible to are looking to him to honor the constitution. In that sense, it's a little bit different from the Boston Tea Party, because that was long before we had the constitution of the United States, and it was long before, there wasn't a constitution like we have here in California. So there's a tension between the core guarantees in the governing document, the ultimate governing document of the state, the constitution, and these statutes, and, you know, statutes do get tested. That's a basic part of how our system works, and if there's a tension between the constitutional guarantee and a particular law, the law has to fall. - Well, it's funny that you should bring that up, because I thought people might be interested to know what the law was in California about interracial marriages. Also was the same in all of the states. There weren't 50 then, but from 1850, when we became a state, to 1948, the law in California, though it changed to add a few categories, read as follows. "No license may be granted." This is about marriage licenses. "When either of the parties, applicants therefore, is an imbecile or insane, or is, at the time of making the application or proofs herein required for said license, under the influence of any intoxicating liquor or narcotic drug, and no license may be issued authorizing the marriage of a white person with a Negro, mulatto, Mongolian, or member of the Malay race." That was our law in California up until 1948, when we had a case in the California Supreme Court that said that that law violated the constitution, and one of the justices, in concurring, went on to say, "For if the reasonableness of a regulation is the only test, it may and will happen that a regulation was reasonable from the point of view of the legislature enacting it and the court first passing on it, and yet in the light of future developments, all the reasonableness may have been lost, and the regulation may have reduced itself to a mere tool of oppression, a hangover from quaint and superstitious days of yore." Now, you don't hear "days of yore" too much in the opinions anymore, either, but I'm interested in sort of, I mean, you know, we've got some lawyers here, and not only people who've engaged in getting this marriage license, and are now engaged in defining and defending their right to do so. So, tell me, how do you think this is gonna turn out? - Well, your language was perfect, actually, I wanna say. We are seeing our work representing couples who are married as really the true Defense of Marriage Act, and need to reclaim that language. Well, in terms of litigation, there are two cases at the trial level, and an important part of that litigation is not just talking about abstract terms about the constitution and the statutes, but the real people who are affected, because in order to defend this type of discrimination, the state has to explain what is the basis of that rule. So, the couples show how they're harmed by having discrimination in the marriage law. The constitutional test is for the state to then come forward with reasons to justify this discrimination, which is based on the sex of persons, and also the sexual orientation of persons. Those are classifications that require a certain type of justification, because we are suspicious of them, to use the language that lawyers use, because use of those classifications is often motivated by discrimination and prejudice, and so it's the court's job to test that, and the government may come forward with a range of types of reasons. What's particularly helpful in this case, and unlike previous marriage cases in the US, is that we have married couples, and so when the government comes forward, trying to justify a discriminatory rule, there are couples present who are, in fact, married, and who, in many instances, their children and the needs of their children are also part of the case. Now, in the past decade, there have been decisions from the Hawaii Supreme Court, the Vermont Supreme Court, the Massachusetts Supreme Court, and those are the only state high courts that have considered the issue. Every one of them, when looking at the issue has said, "Well, this is discrimination." And the Hawaii court wasn't given the chance to answer the ultimate question because of a ballot measure there, but in Vermont and in Massachusetts, all of the reasons put forward to justify the discrimination were studied, and the courts recognized that they didn't hold up. They didn't hold water, and, in fact, the most recent decision of the Massachusetts Supreme Court just issued a couple of weeks ago, I think, is critically important, because the question was put to the court by the legislature. This is an example. As a lawyer, we always say, "Well, don't ask the question unless you know the answer and you want that answer." The legislature might approve of that principle, because they asked, "Well, wouldn't civil unions be good enough?" And that invited the court to give the answer that, well, our history teaches us, in the US, that separate is not equal. If the reason for separation is a desire on the part of one group to exclude the other group, to maintain a second class, or I might say third or fourth class citizenship of the other group, that's actually a principle that most Americans are familiar with, but that's the first time that we've had a state high court really asked that directly, and I think it's our job to carry that forward, and it's gonna be a core part of what we argue about in the litigation in California. - Well, it's interesting, 'cause in Massachusetts, you can get an advisory opinion from the court. You know, they have a slightly older and different system from ours, 'cause we kind of inherited ours from the Spaniards. So, some of our law is different. Community property, that kind of stuff. Incidentally, watch out. I hope you know about all the stuff that you've now gotten into. However, in California, in January of 2005, people registering to be domestic partners, were going to have these same kind of rights and responsibilities. So, let me ask the three of you. People have said to me, why are you stirring things up? Not you, Sheila, but your community. Why are you stirring things up now? It's an election year. Isn't this, you know, kind of a bad thing? Do you have a sense about it? - You know, it's funny. We were talking about that on the way over, and I work in politics. I'm very sensible and sensitive to practical politics. I wanna win and I don't wanna do things at the wrong time, but I can't tell you the number of straight people who have likened what we did to Rosa Parks and said there is a time to move up in the bus, and I don't believe, and I think the reaction, things like the polls, have shown that, already, marriage has actually moved more positive than it was, and Congress is, at least based on some counts, having trouble, even on the Republican side, getting the numbers to actually pass an amendment. I don't know. In fact, maybe we waited too long to do this, and I actually think, maybe, we're exactly at the right time, and I have to say, I think that that the mayor of San Francisco being willing to take this stand, which, as Jenny said, there's certainly an absolute legal basis for, is also moral, and I hope it turns out to be exactly smart politically as well. I don't think we should automatically accept the proposition that being safe and cautious and waiting 'til our turn is gonna work to our advantage. - Well, in essence, we didn't do this. I mean, we just simply said, "I can?" "Let's get on a plane!" I mean, there has been, obviously, a movement for marriage equality, and there has been a group of people, very dedicated people, working on this for years, and people have said, "Well, let's go incrementally." And we went incrementally, and now this is the next increment, one thinks, right? - I mean, we've always been saying we wanted to do whatever we can to protect our family and protect our children, and with each step that comes along the way, we try and take advantage of that opportunity, and I have to say part of what I find most, what angers me the most, and I find most offensive about some of the debate about this issue within the last week is the suggestion that the reason why marriage has to be defined as only between a man and a woman is to protect children, because, obviously, that's not speaking to our children, and it's not speaking to hundreds of thousands of children in this country, and it's also simply not true on so many levels, and it's not true what the president has suggested about how children raised in gay and lesbian households fare, and this opportunity is available to us, and I think we would be irresponsible not to try and take advantage of it, both to protect our relationship, but for the sake of our kids. - Well, discrimination has always relied on mythology, on negative mythology. I mean, if you're sort of the majority in any way, and frankly, since we're all white, we understand privilege as well, then you have the opportunity to create the mythology about the disfavored, whoever that disfavored is. I mean, the mythology about how children fare in gay and lesbian households is just that, it's mythology. I mean, it's been so positive. A daughter of two of my friends who just graduated from Stanford did her senior thesis about children of gay and lesbian couples and did extensive interviewing and wrote a lot about it, and most of the prejudice that they faced was the same homophobia that their parents face in terms of it, you know, kind of being a problem for them. However, that is, to some extent, what people are talking about. It's like, you shouldn't be raised in these households because you'll face discrimination out there, just like your parents. Same thing they said about mixed race couples. They shouldn't get married, they shouldn't have children, because there will be prejudice against their children. Have your kids experienced this? - I mean, it's no secret that the slur of choice on all playgrounds in all schools in America today is to call someone, to use some epithet that says they're gay, whether it's "faggot" or whatever, and, you know, obviously that cuts closer to the bone for kids who are being raised in a household of gay or lesbian parents. So, they experience that. - I don't wanna use the word "attack", but have they been criticized directly or ostracized, or? - Yes, and I think that's hard on a grown-up. I think it's harder on a kid. We have been lucky that the number of instances, you know, real incidents where there's just a direct, "your parents are gay, get outta here," has been relatively few. They have sort of wonderful spirits and thick skins, but I think there is no question that it's, still, in Los Angeles in 2004, we are not where anybody out there thinks Los Angeles in 2004 must be, isn't it? No, and we need to move farther, and I think seeing all these people on the TV who are, they've interviewed so many people who have been together 20 years, always wanted to get married. They're so happy. - With their baby stroller. - So harmless. - Right. - You know, they're so harmless, They really have to get home to check on their plants. I think that these are very important visual images that are helping. - Well, there was one couple in line that had brought their parents, and their parents were in their 70s, and a friend of mine who was standing in front of them in line said, you know, "Would you like to sit down? I mean, we'll be happy to hold your place." And the 75-year-old father said, "Are you kidding? I've been waiting for this for 20 years!" And it was just, oh, oh, well, of course. Of course you have. That kind of support really touches us, I think, much more than any ostracizing has. - I wanted to pick up on your point about the domestic partner laws in California policy, because I think, sometimes, kids understand the word marriage and what it means in terms of that this is a family, and the domestic partner laws have been something different. I mean, I've certainly heard from kids who have gay and lesbian parents, you know, why aren't you married? Don't you love each other enough to wanna be married? And kids often feel insecure if their parents haven't made this sort of commitment to each other and to the family unit that they know their friends' parents have made. Now, the domestic partner laws are practical and have been an incredibly important strategy, and California is so far ahead of the rest of the country in that regard, because these laws have passed through the democratic process, through the legislature, based on the elected members of the legislature, knowing that their constituents are supportive, and that the state has gradually, gradually, but much faster than some other parts of the country, come to understand that gay and lesbian families need legal protection too. So, now, as we do litigation, we have statutes duly enacted that recite the public policy of the state, that talk about families in California, couples who are committed to each other, who are taking care of children, elderly parents, and who are vulnerable because the law doesn't include them. It is now the public policy of California to take care of those families. At the point that the government tries to justify maintaining discrimination in the marriage law, they don't have the argument that some other states have trotted out that says, "Oh, well, it's our policy to have this, you know, to like this type of family, and not like that type of family." The public policy of the State of California is to care about and protect and include gay and lesbian couples and their families. - Well, now, Jenny, that's gonna be confusing, I think, to people watching, because we talked about the fact that the marriage statute is discriminatory, and I think what you're saying is that within the language of the domestic partner legislation that was passed was some codified intent language saying it's a public policy of the state to protect these families, and the reason we're doing this is to protect these families. So we have created a statement about public policy in the state. Is that what you mean? - [Jenny] Right. - It's in the domestic partner law itself. - Right. This is how I would put it. Many human beings are thirsty. It's the policy of the State of California, and actually, every state, to provide water. Now, most states say, we have water fountains, and they have a policy that says only different sex couples can use those water fountains. Now, in California, California's ahead of the rest of the country, and has set up a separate set of water fountains called domestic partnership. The argument is ultimate, and for people who are thirsty, those water fountains are really important. The lawsuit is going to be, is there a justification for having separate water fountains, marriage over here, domestic partnership here? If you're thirsty, you darn well wanna have access to something, but as a constitutional question, is there a good reason for keeping them separate? - I also would like to point out one thing, to repeat something Jenny said. You know, if we made two separate lines that were totally equal, one of the points of our history is, actually, the separate lines never really are equal for all sorts of reasons. As soon as people say separate but equal, usually, they're not. Look at our history of schools and other things, but because marriage is more than a mere legal contract. At one time, it was sort of a, historically, it was a legal contract. It's become something more than that. One of the things Jenny said is you tell, our kids, any kids, that you're domestic partners, and you start explaining what a civil union is, and their eyes go to the back of their head faster than they usually do at 13, which is fast. People understand marriage. They know what it is. They know what it means. They know it means certain responsibilities and rights, that you're held up and held together, in a way that is easily communicated in a word, that at least to this point in our history, no other word communicates, and I question whether ever will. Again, I'm with Jenny. I think it's wonderful, the work in the California legislature people like you have done, in sort of moving us towards the bus, getting us on the back of the bus, but I think our kids know the difference between the seats in the back and the seats in the front. They may both get us to Bakersfield, but they know the difference. - Well, you know, there's another division as well, and that is, some people have said, "Isn't everything the state does a civil union?" I mean, in a sense, it can't be a religious union, and that's the only other kind there is, but I know you have been long-time members of a church and active in that church, and I think you said that you went through a religious ceremony. So, talk a little bit about that, about your participation in your church, and what their attitude has been about this, because, without a license, they couldn't perform a wedding, but these things seem to be converging on each other in some very interesting ways. - Well, they performed something that looked, kind of walked and talked like a wedding, but, of course, it wasn't a wedding, at the end of the day, when the legalities came into it. We belong to the Episcopal Church. Obviously, it's a mainstream church. Our commitment ceremony in that church was very important to us, but, you know, it's different. It's not... As children, all of us, at five years old, not at 13 years of age, you see it on TV, you hear it from your parents, you wanna grow up, and you wanna be married, and you wanna have a successful marriage. It's something that we all aspire to as a goal, and it's something that everybody understands, whether you're five years old or 50 years old, and, actually, the religious issue, I think it's kind of an interesting issue, because a friend of mine who's at Princeton Theological Seminary explained to me that, when the minister marries and says, "By the power vested in me by the State of California, I hereby pronounce you man and wife," is the traditional end of that sentence. It's the only function that a clergy member performs on behalf of the state, and in most countries, that function is not performed by the state. Even if you want to get married in the church, you go to city hall, you have your civil marriage, and then the next day or the day before, however you want to time it, you have your church wedding, and I think part of the reason why the American public may struggle so much with the M word, marriage, is because the civil and the religious have been so completely and closely intertwined in American society. - Because only certain people are designated to perform weddings and to sign the papers for it to be filed, you know, at city hall, and some of those people, though not all of them, are clergy. - That's right. I do think it's important, and I see Jenny wants to jump in here too, what churches are doing in sort of pushing their congregants, their denominations, to recognize from a spiritual sense, there is a religious and theological basis for unions of same sex couples, and so it's not the same, what we went through in a religious institution, but I think it's another one of the important waves that is pushing us ahead. I have to go back. The most wonderful thing Jenny said in the beginning is, "We are gonna win." And I think it's another wave that's sort of pushing us. - What I was gonna add, I mean, I actually think that the churches being more visible in celebrating the fact that they have been celebrating same sex unions for quite some time is an important thing that the country is starting to see, but I wanted to flag the D word to go with the M word, because the other critically important precedent, we talk about the interracial marriage precedent. The other precedent is divorce, and the fact that, historically, divorce was not available in this country, and there was a period of change. When some states started to make divorce available, other states resisted that. Many of the leading religious institutions fiercely resisted that change, and the country did not fall into chaos. Actually, there was an evolution forward where some states permitted divorce, others continued to not for some period of time, yet states respected, one state that would not permit divorce would respect a divorce decree entered by another state based on the federal constitution requiring respect of judgment state to state, and society managed that just fine. Religious leaders continued for a long time, and many still do to, to say divorce is a very bad thing, but society understood that it was not up to religious leaders to dictate whether civil divorce would be available to couples or not, that every couple decides their own religious faith, whether to marry, whether to divorce, and to discuss that with their religious counselor, but the civil law is not to follow religious dictates. That seems to me to be equally important, not just because, as a lawyer, we deal with the difficulties that gay and lesbian couples have by being fenced out of the Family Code and fenced out of family court, because of not having relationships recognized through marriage. It's a funny argument for marriage to talk about divorce, but the order, handling the problems that couples have, that families have, which includes the coming together and the coming apart, when that's the right choice for a particular family, that's just as important in terms of society being orderly. So, I mean, I think people need to remember it was the '60s. It wasn't that long ago that there was a national conversation about divorce. We weathered that fine, just like society as a whole will weather and actually be stronger when loving same sex couples are held to their commitments the same way that different sex couples are held to their commitments. - Well, I mean, the state has been very deeply involved in the family, and it seems to me that the movement that I've seen is that the state, in some ways, has gotten out of the way of families making decisions, and in other ways, has become much more interested in what's going on in families. The whole domestic violence movement related to the law has been about more interference in the family. The whole thing about sexual abuse of children has been, you know, where it used to be, not very long ago, that the state did not interfere in what was going on in the family. If there was violence in the family, that wasn't the state's business, and as to divorce, the state was very, very dedicated to keeping people together. After you filed for divorce, you couldn't get one for, in many states, a year or longer, and then after your divorce was granted, it wouldn't be final for six months, in some places, a year, and in my generation, when people wanted a divorce, they went to Nevada, which was the place where you got the divorce the quickest. People would set up residence in Reno or in Las Vegas, and, I mean, there have been movies about it and books about it. They just lived there long enough, you know, to get their divorce, but as you said, it would be recognized in California, even though people went for the so-called quickie, which still wasn't a quickie divorce. So the state has been very interested, all states, in marriage and divorce. I mean, it's not unusual to have to talk about the law, the civil law. It's been sort of the most interfering law in America, in the family, more, in a sense, than religion, because you could just say, "I don't want my religion anymore. I'll just go, you know, here, and get my marriage." But you can't get your marriage without the state. You've simply got some union that, you know, your church put together. - [Rich] Right. - It's practical. I mean, you guys have described the intense personal meaning to couples, and I think that's what the public is seeing with these weddings happening in San Francisco, the beauty of it, and the intense meaning and happiness of the couples, and then at the same time, it is a practical system for taking care of the range of things that can happen to a family. You make the commitment that you're going to be a family, and then society has taken on and recognized it's a good thing to help people. It's not sensible and it probably wouldn't be that healthy for couples to spend, oh, this bad thing could happen. What would we do? That bad thing might happen! I mean, you know, we've developed a system that works pretty well for a lot of people to have a bunch of default rules, which seems to me, couples have an awful lot of things to worry about. You guys could speak about this, just getting through the day and doing what you need to do, and the system of the Family Code and the marriage laws is there to make it easier. - Also, one thing that Jenny pointed out that I think is absolutely true for us, we've now been together ourselves almost 25 years. We've had kids since they were babies, they're 13, and one of the things we worry about is that there's some new rule or some new law out there that we have to figure out some legal protection against, or that we're always supposed to be going to lawyers and asking if we're supposed to be doing something new. You know, we like to think we're never gonna get divorced, at least not vis-a-vis each other, but especially for our kids, that is there some new protection out there? Should we be moving to Massachusetts 'cause it's safer for them? You know, which we don't wanna do. We believe they belong here and we belong here, but that's certainly something we worry about, and, actually, marriage is a system that's set up that has default rules, as you say. - So what's the best thing that's happened to you since you've been married? (Sheila chuckles) - [Rich] Oh, gosh. - it's tough, I know, but still. So many good things to choose from. - I go back to what I said, the wonderful reaction of so many people, and the fact they've reacted so well, and that they have taken this as a very real meaningful event in our lives, that other people have reacted in that way, that it's not just something we did when we flew up to San Francisco on a crazy lark, but the statement that we've made, and the fact it is a social statement and that other people are hearing that statement and acknowledging it. - [Sheila] Rich? - I agree with that, and especially, and I do think people are hearing it, both personal and political, in the best combination. You know, there are congratulations and mazal tov to you, and thank you, and I wanna support you for making sort of the political leap you're helping all of us make, and it's also been wonderful, the number of people, gay and lesbian people, who've said, "Gee, marriage. (Sheila chuckling) This is real now! I wonder!" Including people who've been together a long time. It's been very interesting. It creates a whole opportunity for life that we didn't have before. - Well, and people having to face the same thing that straight people have had to face in trying to decide, okay, now, if it's available, is it the right thing for me? - [Rich] Right. - Well, there you have it. Thank you, Rich and Chris, very much for your story. Thank you, Jenny, for your information, and really for the representation that Lambda and the other organizations are giving on this issue. This is an unfolding, really critical civil rights issue in the 21st century in America, and I guess we're gonna talk more about gay marriage and get used to it.