For some years Californian’s have given gay and lesbian politicians extraordinary leadership opportunities and power in the state. The power these politicians possess in state government is from stronger positions and relatively larger numbers than that of many other minority groups, including Asian elected officials, in a state where Asians comprise 14% of the population, and they arguably possess more political power than African-American politicians, whose affinity group represents close to 7% of the state population. California’s gay and lesbian elected officials have wielded this power even as those same California voters disapproved gay marriage at the ballot, as in 2008, when just over 52% of voters approved a ban on same-sex marriage. (The same voters gave Barack Obama over 61% of their votes in the same election.) But times are changing, and California’s highly influential gay and lesbian elected officials, who have been so successful on civil rights issues for the lesbian, gay, bisexual and transgender community, and have worked so hard on issues like same-sex marriage, have surely played a role in the remarkable changes in California public opinion since 2008. According to a September 2013 Public Policy Institute of California poll (taken well before the U.S. Supreme Court’s decision approving same-sex marriage as a Constitutional right), a record high 61% of Californians and 64% of likely voters favored allowing gay and lesbian couples to legally marry, and in apparent remorse for the 2008 vote on Proposition 8, solid majorities of Californians (59%) and likely voters (63%) approved of the U.S. Supreme Court’s earlier decision to let stand a lower court ruling that put a “stay” on Proposition 8’s ban on same-sex marriage in California. One might guess that public opinion in California in favor of same-sex marriage is even more popular today than in PPIC’s last survey.
Who are these notably powerful gay and lesbian leaders? They are almost all liberal Democrats, and have served in responsible leadership positions (some retired only because of term limits) in the last decade and include current Assembly Speaker (the state assembly’s most important position) Toni Atkins of San Diego, the state’s first out lesbian Speaker, and her immediate predecessor John Perez of Los Angeles, the state’s first out gay Assembly Speaker. Included also are former State Senator Sheila Kuehl from Santa Monica, now serving in the significant position of Los Angeles County Supervisor, current State Senator Mark Leno of San Francisco, the State Senate’s first out gay State Senator and a possible successor for Nancy Pelosi’s Congressional seat, former State Senator Carole Migden of San Francisco, along with retired State Senator Christine Kehoe of San Diego and retired Assembly member Jackie Goldberg of Los Angeles. Congressman Mark Takano of Riverside is an out gay, as is San Diego County Supervisor Dave Roberts. They are all Democrats and are joined by many more gay and lesbian elected officials throughout the state in other state and local offices.
A few influential gay and lesbian elected officials are Republicans, and they are generally representing southern California constituencies. Bonnie Dumanis, holding the important office of District Attorney of San Diego County, is a lesbian and a Republican. But Republican gay and lesbian candidates have been less successful at the ballot box than their liberal Democrat counterparts. Carl DeMaio was elected to the San Diego City Council, but he lost close races for Mayor of San Diego and the 52nd Congressional seat to straight Democrats. Kevin James lost his race for Mayor of Los Angeles in 2013, but was appointed after the election to the powerful Public Works Commission. Some gay Republican elected officials have not been “out” about themselves. In at least one example, former GOP State Senator Roy Ashburn was considered in a published account as a “fierce opponent of gay rights” until he was arrested for drunk driving after leaving a gay nightclub in Sacramento one night, leading to his coming “out” as a gay man. Ashburn’s term ended in the State Senate in 2010 and he lost a shot at a political comeback when he ran for Kern County Board of Supervisors in 2012 and lost. (He had previously served 12 years as a supervisor, before his election to the state Legislature.)
California’s powerful liberal Democratic gay and lesbian elected leaders of course can’t claim credit for the U.S. Supreme Court’s decision, but the result is something they have doggedly and passionately worked on for many years. It is a huge goal to be considered now accomplished. So the question is, what will they do with their formidable power now?
San Francisco Chronicle reporter Carla Marinucci asked more-or-less that question in a recent article. She quotes Rick Zbur, executive director of Equality California, as saying there is growing concern that “we see people coming out of religious communities being very threatened by the advances we made, and we really need to work on that.” “Here in California,” he said, “we’re still seeing continued attacks by the religious right on the transgender community, and ballot measures by the same right-wing extremists who brought us Prop. 8.”
Zbur’s rhetoric may also be a growing concern. If it was “right-wing” extremists who brought about Proposition 8, they were supported by 52% of the state, the same state that elected Obama in a landslide in the same election. There should not be growing concerns on the part of the lesbian, gay, bisexual and transgender community given the changes we have seen in California and society in general since 2008. As I said earlier, polling shows a markedly different attitude today among Californians on the issue of same-sex marriage than just seven years ago, and those changes in voter attitudes aren’t just about changes in demographics. They have a lot to do with political leadership in the state. In my opinion, the growing concern for the state is not about what right-wing extremists are going to do, rather, it is about how far California’s supporters of LGBT rights are going to push their advantage into the new realm that will pit personal property rights against discrimination claims in the state.
Housing, employment, insurance, renting, leasing, buying, selling, personal service agreements; all these activities involve personal property rights protected by many of the same parts of the constitution as same-sex marriage now is protected. It is these activities that will likely become the focus of new state legislative proposals intent on building on the U.S. Supreme Court case and this is where the coming tension between constitutional interests will be at the most important. The constitutionally protected right to privacy will also be an issue, as in efforts by opponents of the so-called “transgender” bathroom legislation adopted by the state in 2013. It will be interesting to see how Californians react in polls and voting on an initiative measure pitting personal privacy rights in a bathroom against the right of a transgender person to self-identify. But let us be clear: privacy, rightly or wrongly, is not a constitutional right that has held much of a trump card with the U.S. Supreme Court in recent decades, as in The Patriot Act decisions. However, personal property rights have indeed mattered to a continuing majority of the modern court, and California’s gay and lesbian leaders should be very careful about how they play their current winning hand, because pushing too hard might just be seen as an attempt not to address a civil right, but to achieve a favoritism in law, and that could easily become a 5-4 losing hand.