In a voice freighted with emotion, Gov. Chris Gregoire embraced gay marriage in January saying it is a civil right and denying it to same-sex couples is a vestige of discrimination that needs to be eliminated in the state and nation.
“Throughout our history, we have fought discrimination,” she said. “We have made major strides toward equality for racial minorities, for women, for people with disabilities, for immigrants, for religious sects. It’s this generation’s call to end discrimination against our gay and lesbian citizens.”
Now, 10 months later, the coalition working to approve Referendum 74 and preserve the gay marriage law Gregoire signed isn’t making the governor’s argument a central part of its campaign.
Rather, it is pouring millions of dollars into commercials featuring heterosexual couples who talk about wanting same-sex couples to be able to express their love and commitment through marriage the same as they have. Supporters’ message is that approving the referendum won’t change the institution of marriage, only expand access to it.
“Marriage is so much more than a bundle of legal rights,” said Anne Levinson, a retired judge and adviser to Washington United for Marriage, the group conducting the campaign in support of the ballot measure.
“When you talk to people who want to get married they say it’s not about debating rights,” she said. “It’s about standing in front of family and friends to make that promise and take that vow.”
While the law’s backers view the ability to marry as a civil right that gays and lesbians deserve, they are not convinced voters will see it that way, and the next five weeks are all about getting votes.
Historically, in ballot battles around the country, pushing gay marriage as a right hasn’t succeeded. In fact, no strategy has worked. Thirty-four times in the past decades voters have embraced defining marriage as between a man and a woman.
This fall, Washington is one of four states in which voters are considering measures to make or keep gay marriage legal.
Those opposed to Referendum 74 say gay marriage is not a civil right and trying to inject it into the campaign would fail. Voters, they say, dealt with the matter of rights in 2009 when they upheld a state law ensuring same-sex couples registered as domestic partners are treated the same under state law as married heterosexual couples.
“We know our opponents will try to bring it in and we will continue to remind the voters that same-sex couples do have all the rights, privileges and benefits as the heterosexual couples under state law,” said Chris Plante, deputy campaign manager for Preserve Marriage Washington, the coalition fighting the referendum.
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Seattle residents Vic Langford and Oscar Eason Jr. are black, in their 70s and members of the NAACP.
They grew up in the turbulence of the 1950s and 60s when racial conflicts spawned a national civil rights movement.
In spite of the parallels of their pasts, they’ve reached opposite conclusions on whether gays enjoy a civil right to marry.
Certainly not, said Langford, who was raised in Detroit and is pastor at Saint Mark’s Lutheran Church in Seattle.
“We were discriminated against not because of anything we said or did. It was because of who we were,” he said. “As it relates to gays, it is not about the identity, it is about the behavior. There is no way you can confuse the two.”
Eason, who was raised in San Antonio, Texas, is president of the NAACP Tri-State Area Conference covering Alaska, Oregon and Washington. He said just as blacks did two generations ago, gays and lesbians are pointing to the Constitution to assert their claim.
“Gay people have that document that guarantees them the right to life, liberty and the pursuit of happiness,” he said.
In May, the national board of the NAACP adopted a resolution endorsing legalizing gay marriage nationwide.
“Civil marriage is a civil right and a matter of civil law. The NAACP’s support for marriage equality is deeply rooted in the 14th Amendment of the United States Constitution and equal protection of all people,” said Benjamin Todd Jealous, president and chief executive officer of the NAACP.
Langford said he was “very disappointed” in the board’s decision.
“They have mixed apples and oranges,” he said. “It’s always been about our identity, not our behavior.”
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Ask Peter Nicolas and Hugh Spitzer if gay marriage is a civil right and they each begin with a history lesson.
What is or what isn’t a civil right is a debate that’s gone on in this country since its inception, said Nicolas, a University of Washington law professor.
And it’s a term which typically pops up when lawmakers and judges are asked to discern the breadth of political and social rights of individuals, said Spitzer, an affiliate professor at the UW School of Law.
In the early 19th century, Spitzer said, the conversation centered on voting. At the time, only white men who owned property could vote. Then Congress decided white men enjoyed a civil right to cast a ballot, even if they didn’t own property.
In the 1850s and ’60s, the question was whether individuals had a civil right to be free of slavery. Early last century, granting women a right to vote was considered a civil rights victory.
Since Brown v. Board of Education in 1954, the landmark desegregation case in which the U.S. Supreme Court outlawed separate but equal facilities, the term “civil right” has been attached almost exclusively to race.
Some blacks, like Langford, are offended by what they view as a co-opting of the experience. Gays and lesbians insist their fight for marriage in no way diminishes that history.
“I am not trying to compare our struggle with the struggles of the people before us,” said state Rep. Marko Liias, D-Edmonds, who is gay. “This is a new struggle for civil rights. It is different than the struggles that took place in the past.”
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The U.S. Supreme Court called marriage a fundamental right in the 1967 case outlawing a ban on interracial marriages. Whether that fundamental right should be available for same-sex couples has not been made clear yet by the nation’s high court.
That could change soon. This fall, justices may consider challenges to the federal Defense of Marriage Act and the constitutionality of Proposition 8, the California initiative which sought to overturn that state’s same-sex marriage law.
By the time arguments are heard and rulings issued in those cases, voters will have spoken in Washington on Referendum 74.
The ballot measure asks a simple question of voters — do they wish to approve or reject the law signed by Gregoire in February making marriage legal for gay and lesbian couples.
If a majority approves, weddings of same-sex couples will be taking place by Christmas. If a majority rejects the referendum, those couples will still be able to register as domestic partnerships and be treated the same under state law as heterosexual couples.
For some, this question of civil rights or not may sway their decision.
“Extending the freedom to marry is a fundamental civil right. It is an aspect of why upholding this law is so important,” said Levinson of Washington United for Marriage. “For some people it is the most important aspect.”
Jerry Cornfield: 360-352-8623; email@example.com