Frank: A Life in Politics from the Great Society to Same-Sex Marriage (36 page)

My conviction that Newsom’s actions, and those of his imitators, would hurt us politically is supported by one of the best subsequent studies of the same-sex marriage issue. As the Harvard law professor Michael J. Klarman notes in his book
From the Closet to the Altar
:

The gay marriage ceremonies conducted (mainly) in San Francisco and Portland early in 2004 generated at least as much backlash against gay marriage as had
Goodridge
itself … Given strong support for gay marriage among their constituents, the decisions of local officials such as Mayor Newsom … to issue marriage licenses to same-sex couples were politically shrewd. The political repercussions of their actions elsewhere, however, were rather different … Images of same-sex couples celebrating their marriages outside of city hall in San Francisco were quickly broadcast by national media across the country and enabled conservatives to mobilize grassroots campaigns for state constitutional amendments to bar gay marriage … The West Coast marriages, more than the
Goodridge
decision that inspired them, ignited the powerful political backlash of 2004 … Karl Rove had to stifle a grin when asked after the election whether he was indebted to Mayor Newsom for opening city hall to same-sex marriages.

In the right circumstances, of course, there is a strong case to be made for partial steps toward a cherished goal. It was a great accomplishment when the Vermont legislature enacted civil unions in 2000. This was the first statewide recognition of our right to love each other, and it conferred significant legal and economic benefits on same-sex couples. Despite this, some members of our community at the time opposed anything short of marriage. When Governor Howard Dean sought out my views before signing the bill, I was happy to tell him that I thought the anti-civil-union arguments lacked both moral validity and anything close to majority support among us. His signature on the bill was politically courageous—and vindicated when the state’s positive experience with civil unions led years later to full marriage rights.

In arguing for the pursuit of LGBT equality through compromise, I frequently encountered the objection that the African American civil rights movement did not settle for partial victories. I often elicited shock when I responded that the NAACP’s first victories in segregation cases after World War II did not involve direct challenges to the constitutionality of “separate but equal.” Instead, the NAACP made a more limited claim: The segregated state-run law schools in Texas and Oklahoma were unequal in fact. The Supreme Court agreed—it required the whites-only state-run schools to admit black applicants, but it did not repudiate segregation in principle. These decisions offered benefits to some of the victims of discrimination, and served as political and legal stepping-stones toward ultimate victory. The NAACP lawyers were not acquiescing to the constitutionality of separate but equal—they were pursuing a thoughtful, tough-minded strategy to overthrow it. Incrementalism is not the enemy of militancy; it is often the only effective means of expressing it.

In Newsom’s case, however, such lessons in the value of partial steps did not apply. He was not taking a step toward marriage. His actions made no substantive progress at all. To the contrary, many of the San Francisco couples who “benefited” when Newsom authorized their marriages in February were bitterly disappointed when the California Supreme Court pronounced these marriages invalid in August—as the state’s constitution inarguably compelled them to do. The speed with which the court acted underlined how clear-cut the issue was. And this was a court sympathetic to our rights. Four years later, responding to a lawsuit brought in the appropriate, slower manner Newsom eschewed, that same court ruled that the California constitution conferred a right to same-sex marriage.

A month before the election, the Republicans brought their antimarriage amendment to the floor. The quality of their debating points had not improved, and I felt sufficiently confident—and angry—to make my disrespect for them very clear. In one widely quoted exchange, when a former judge, Representative John Carter, lamented that he had presided over the dissolution of twenty thousand marriages, and with perfect illogic cited this as justification for not allowing us to form any, I “barked” (according to one published account) in response, “I’m a gay man and I presided over the dissolution of none,” adding that “I’m sorry Rush Limbaugh’s been divorced three times, but it ain’t my fault.”

The debate also featured one of the stupidest arguments I ever heard in the House. As
The New York Times
reported, “Representative Phil Gingrey said support for traditional marriage ‘is perhaps the best message we can give to the Middle East and all the trouble they’re having over there right now.’” Given the limits on speaking time, I never got the chance to ask Gingrey why he believed an amendment restricting marriage to one man and one woman would be so appealing to a region where polygamy was legally and religiously sanctioned.

With overwhelming Democratic solidarity, the amendment fell forty-six votes short of the two-thirds vote it needed. And no Democrats lost their seats because of their stands. The Massachusetts court decision survived and became the vital beachhead for same-sex marriage across the country.

*

Kerry’s defeat in November was a great disappointment. Bush’s presidency continued, with further disastrous consequences. On the personal plane, there was fallout as well. If Kerry had gone to the White House, I had planned to run for his Senate seat, and polls showed that I was a likely victor. That was not to be. Even so, I returned to the House with a new zest for debate.

The opportunity soon arose. I was at home in Newton on the morning of Sunday, March 20, 2005, when I received notification that the House would convene later that same day to consider the case of a Florida woman named Terri Schiavo. Fifteen years earlier, she had fallen into a comatose state. Once it became clear her condition would not improve, her husband asked the hospital to remove her feeding tube. This was in accordance with a wish he said she had expressed to him before she was stricken.

Schiavo’s parents objected, and since the law as it stood gave her husband the right to decide, Florida Republicans, led by a passionately committed Governor Jeb Bush, rushed to change that law and nullify the husband’s directive. When their effort was overruled by the Florida courts—with very little judicial disagreement—the president took over from his brother, and with the enthusiastic backing of the Republican leadership, asked Congress to accomplish what Florida legislators could not.

The Republican bill was debated but could not be enacted before Congress’s spring recess began. With Congress not due to reconvene for eighteen days, this meant that Michael Schiavo’s interpretation of his wife’s wishes would prevail, the tube would be removed, and it would be too late for the returning Congress to do anything about it.

When the recess began, I made the same misjudgment that I had made during impeachment. I assumed that the Republicans would not push their ill-advised effort to a conclusion. I expected they would settle for claiming to have done their best. The summons to an extraordinary session—on Palm Sunday, with one day’s notice—disabused me.

It’s generally believed that the Republicans hoped for large political gain. In fairness to my colleagues, I do not think that was their major motivation. Jeb Bush, Tom DeLay, and other prominent Republicans genuinely and passionately believed that removing the feeding tube would contradict God’s wishes, and that their moral responsibility to intervene overrode any other considerations. Hence the extraordinary session.

I did not want to go to Washington. My schedule for that day and the next included several events in the district that I looked forward to attending—the most significant being a dinner that evening sponsored by a congregation of orthodox Jews who were staunch supporters despite their religious views. The main organizer of the event in particular had been an unwavering friend. It was clear that there was nothing I or any other opponents of the bill could do to stop it, especially because everyone assumed it would have broad and deep public support.

Logically, staying home made more sense. But emotionally, I couldn’t not go. When I first ran for office, I had promised myself that I would offset my cowardice on the subject of my sexual orientation by not ducking any other tough issue—and this looked like it would be one of the toughest. Moreover, I was as angered by the Republicans’ effort as Jeb Bush and Tom DeLay were by Michael Schiavo’s decision. The bill was an outrageous intrusion by the legislative branch into the proper domain of the judiciary. For Congress to reverse a specific court ruling, one that had clearly been made properly, meant an end to the rule of law. Politics, not the merits of the case, would become the arbiter of disputes whenever enough politicians got the urge.

Additionally, substituting Jeb Bush’s personal religiously based view of what should happen when a person is brain-dead for her own wishes, and those of her husband, was a terrible violation of personal autonomy. No one was telling Bush, DeLay, or any other Republican what should be done if he were in an irreversible, totally insensate vegetative state. Their right to abide by what they believed God was telling them deserved full protection. Only in a theocracy did they have the further right to impose this position on people who disagreed with it. I stress this point for a reason. While the bill’s most ardent supporters claimed to doubt that Terri Schiavo had instructed her husband to eschew life support, it became clear that they would have tried to prevent the removal of her feeding tube even if her wishes had been unmistakable.

There was one other aspect of the issue that was relevant to the broader public policy debate. Keeping Terri Schiavo on a feeding tube in a hospital bed for years was very expensive. This is not an argument for removing any device that sustains life. But it does demonstrate the hypocrisy of those who insist that unlimited amounts of money be spent in these cases while simultaneously trying to reduce funding for Medicare and Medicaid, the two programs that bear most of the resulting financial burden. The Republicans who had joined with Clinton in constraining those programs a few years earlier were in effect insisting that we spend large amounts of money providing care to people who did not want it and derived no benefit from it in preference to responding fully to the health needs of those who both wanted it and needed it.

I arrived in Washington expecting to speak against the bill at the behest of the Democratic floor manager and perhaps do a few TV interviews. Instead, I was met by two of my colleagues from Florida, Robert Wexler and Debbie Wasserman Schultz, who regretfully told me that the Democratic leadership had decided not to fight the bill. Nancy Pelosi had left the country on a congressional trip two days before and could not return. The rest of our leadership made it clear that it would be fine with them if we emulated our Senate colleagues and let the bill pass by voice vote.

We refused. Feeling as strongly as we did, we vowed to fight the bill as vocally and demonstratively as we could. I became the floor manager for several reasons. First, given the perceived unpopularity of our effort—bluntly, we wanted to let Schiavo’s husband remove the feeding tube over the poignant objection of her parents—there weren’t a lot of volunteers. Second, I was the most senior member committed to the fight and had by far the most experience in managing floor time—which is harder than it looks. Third, I wanted to do it. Why the hell disrupt my plans and rush down to Washington, I thought to myself, just to make one five-minute speech and then be frustrated by having to listen to a series of really offensive arguments without being able to answer them? (It is the debate manager’s prerogative to inject comments throughout the debate.)

The exchange that followed was one of the best that I would ever see in Congress. Members did not have time to have their staffs write out their speeches for them. With no phone calls to make or answer, and no mail to read, there was not much for members to do in their offices, so floor attendance was far greater than the norm. We actually reacted to each other’s words, correcting, amplifying, and contradicting, as in a real conversation.

I was very happy with how things went. They had the votes, but we had the arguments. As the vote took place in the floor, dozens of Democrats and a few Republicans made a point of telling me that they thought we had made a compelling case, but the politics of the issue were too strong for them to vote with us. We lost, 58 to 203, with Democrats dividing 53 to 47 and only 5 Republicans voting no. To block any preemptive action by Michael Schiavo, President Bush flew from Texas to Washington to sign the bill.

We had wanted a chance to vent. What we got was a chance to persuade—to engage the public more deeply. I was pleasantly surprised over the next few days to learn that an unusually large number had paid attention to this fight, and most of them were on our side. Average citizens were indignant that politicians would intrude into such an intensely personal decision. For the first time since impeachment, I was approached by people on the street, in restaurants, and in other public places who thanked me for my work.

I can remember no other situation where the political community—myself included—so badly misjudged public reaction. Voters hadn’t previously urged politicians to stay out of end-of-life decisions because no one imagined that politicians would dare intrude into them. As soon as they did, voters told them to butt out. A month later, on a plane back to Massachusetts, Ted Kennedy told me that he had been eager to debate the bill in the Senate as we’d debated it in the House, but his leadership had begged him to spare his vulnerable Democratic colleagues the fallout they feared. “You really had fun with that, didn’t you?” he commented wistfully.

The public reaction to this controversy had a broader political significance for Democrats. It was further confirmation—conclusive to me—that blaming the disaffection of white working-and middle-class males on social issues was a bad mistake, intellectually and politically. How could our problem with these voters be our disrespect for traditional sexual morality and our flouting of conservative religious principles if the Republicans lost support when they tried to impeach a president who had oral sex outside his marriage, lost even more support when they sternly insisted that life should end only by God’s unaided will, and, in 2006, lost their House majority despite making Democrats vote—as we overwhelmingly did—against banning same-sex marriages?