Q&A with Assemblyman Mark Leno 

In June 2005, the California state Assembly defeated Mark Leno’s bill for marriage equality. Leno, though, hasn’t given up. He believes California will one day lead the way in establishing gay and lesbian couples’ fundamental right to marry.

American Sexuality: AB19, your bill to make California’s marriage laws gender neutral, failed to pass in the Assembly, but the issue isn’t dead. Please explain what is happening in the Legislature.

Mark Leno: Unlike Congress and most local governments, which have the ability to introduce new legislation anytime during the year, the California Legislature has deadlines throughout the year. No new legislation can be introduced at this time, given that all Assembly bills must have passed off the Assembly floor two weeks ago and all Senate bills must have passed off the Senate floor two weeks ago. The only way to move a new bill forward is through a process called “gut and amend.” It’s not a very appetizing title, I know, but it is a process of amending out the language of one bill and amending in the language of a different bill.

So in the case of our Religious Freedom and Civil Marriage Protection Act, the only change is that it has a new number and that new number is AB849. It’s already on the Senate side. It will be heard in the Rules Committee in the Senate, and the Rules Committee will need to assign it by committee vote to the Judiciary Committee. We’re expecting the Rules Committee to assign it to the Judiciary Committee for the last Judiciary Committee hearing on Tuesday, July 5th, which is the policy committee on the Senate side. We’ll then move it through the policy committee on the Senate side. It will then go to the Appropriations Committee, and then finally go to the Senate floor for a vote probably sometime in August. Should everything move successfully, it will come back to the Assembly on concurrence, meaning the Assembly would have to concur on the amendment taken on the Senate side to AB849, the amendment being our marriage bill.

There is some criticism of the gut and amend process, when it’s used in the 11th hour of any session, late into August, even sometimes the last night or two of a session. It is criticized when the public process is cut short. In the case of our bill, nothing could be further from the truth. There will be nothing cut short; there will be no process abbreviated. It’s merely an opportunity for us to continue moving this issue forward given its critical importance.

AS: What happened in June with the Assembly vote? Why wasn’t the bill successful and how will you work to make AB849 successful?

ML: It’s a little bit of the glass half full, half empty. No state legislative body in the history of this country has ever held a vote on this subject of marriage equality without (a court) mandate, prior to our vote on AB19. So it was historic. We came very, very close. Of course close is not good enough to end the inequity that same-sex couples and their families suffer daily. But there were 37 votes. We needed 41. Actually, 38 are already on record; one just happened to be out of the building inconveniently.

So really, it starts on the Assembly side, as it comes back to us, at 38. And we (did have) a 39th and 40th prepared to vote, but they only wanted to cast that vote knowing there would be a 41st, meaning that it would pass, which is the nature of controversial bills around here.

We believe it’s definitely doable and we now have additional weeks to continue to solidify the support and to make our case. It’s a matter of continuing to have discussions with members. I’m not expecting anyone who voted no on the bill—and again, unfortunately, we’re just…excusing is not quite the word but… recognizing that 32 out of 32 Republicans on the Assembly side and 15 out of 15 Republicans on the Senate side will not vote for this. It’s just a given; it’s an unfortunate fact of life. This issue of civil rights is not a partisan issue, and years from now I am certain that my Republican colleagues will be embarrassed that no one even expected them to cast a vote for this.

Just to give historical documentation…Any number of them now say they don’t support marriage but of course they support equal protection under the law for same-sex couples—they support domestic partnerships now that Arnold Schwarzenegger does and now that George Bush does. But the fact is there wasn’t a single Republican vote back in 1999 to create the domestic partner registry. They’re just always years behind. I don’t know why that is. It’s unfortunate. And that’s not an aspersion on my Republican colleagues. They’re in partnership with their own constituency; they let the constituency lead them; they don’t take the opportunity to educate their constituency. It’s a dynamic that goes back and forth and no progress is made. We just have to drag them along.

We’re just focusing on those Democrats on the Assembly side who abstained from voting back in June. We need three votes; our universe is about six or seven. The math is on our side. Of course we have to make our way through the Senate first and there are no certainties in the legislative process, but again, we are very confident. I’m even more confident on the Senate side. It’s a body of only 40 members instead of 80, and they are more seasoned legislators. They represent twice as many people, so progressive legislation—whether it’s civil rights, consumer rights, workers rights, environmental protections—always has an easier time in the Senate.

AS: What do you think Governor Schwarzenegger will do if AB849 reaches his desk?

ML: I’ve always described it as a 50-50 fighting chance. And I say that for a couple of reasons. He has said repeatedly and publicly that should the people or the courts change the current law, meaning the limited definition of marriage, he’s got no problem with it. So the policy issue is one with which he has comfort. And I believe him to be a libertarian when it comes to civil rights issues. He doesn’t believe the government should be interfering with our private lives, in this case the most private and intimate decision a person makes.

Presently our government is telling you if you are a man, yes you can get married but only if it is with a woman. The government doesn’t care if you know that woman an hour or not. If it’s a woman, you can marry her. If you’re a man and your choice of partners is another man and you’ve been with that person for 50 years, it’s not good enough for the government. That’s what we’re trying to correct here. It just makes no sense.

So I think that we have a good chance of his looking at this in a very serious manner. Additionally, he has since then said (again) in a Chris Matthews interview, should the Legislature or the people or the courts change the law, he’s got no problem with it. That’s, of course, exactly what we’re doing as a Legislature. He was also challenged by Chris Matthews who said if the California Supreme Court were to uphold San Francisco Superior Court Judge Richard Kramer (who declared that the law defining marriage as a union between a man and a woman discriminated on the basis of sex), ‘Will you, Governor, support an initiative to amend the California constitution?’ And his response was ‘absolutely not.’ That’s encouraging as well.

AS: If AB849 were to become law, what would it mean for the nation?

ML: It would be a very significant historical occurrence. No longer could our adversaries claim that just (so-called) ‘activist judges’ were responsible for the progress of this civil rights issue. Duly elected officials would have done so. It will, I believe, change the tenor of the debate across the country.

Of course, even with the signing into law of AB849, we know that our opponents are already attempting to gather signatures to place the issue either as a referendum, which would repeal the act of the Legislature, or as a constitutional amendment should the bill not become law, to prevent the Legislature and the California Supreme Court from ever having a say in this again. They’re going to do everything they can to stop this. Even though our civil rights should never be on the ballot, we realize there is the legal option for it, so we’ll have to face the voters, likely in 2006. It’s going to be hard work, it’s going to be very expensive, it’s going to be a real battle but I think it will be their Waterloo, because once a state—and we would be the first state but we’ll also be California—turns back the hateful efforts of such an initiative drive, it will over time move across the country. I’m certain that in those states where constitutional amendments have already been passed, that in time they will have to be reviewed and overturned. Some will be overturned by courts as unconstitutional as already has happened in Nebraska; for others, voters will have to take it up again but in a more enlightened fashion, and will realize the mistakes of their way.

AS: The marriage equality issue has taken up a lot of time for advocates of the LGBT community. Do you think there are other important issues being sidelined because of this? Are there things that the gay-rights movement is not addressing?

ML: I sometimes hear that concern, if not complaint, but I think it’s…not quite accurate. Because…whether we’re talking about other injustices that the LGBT community experiences regularly—if that injustice is economic or health related, insurance related, housing related, employment related, whatever it may be—once we establish that the fundamental right to marry—and I’m now quoting; those were the words of 1948 California Supreme Court when it ended the ban on interracial marriage saying marriage is more than a civil contract to be regulated by state law; it is a fundamental right of all citizens—once we establish that gay and lesbian couples are among the family of all citizens, everything else changes because that will define us finally as first-class citizens. Once we are able to marry there is no longer any rational or legal defense to deny us any other full legal right and protection. So, I think everything else is interrelated. And I say that as a single man. This is about our humanity.