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毎日新聞 2006年10月7日 17時46分 （最終更新時間 10月7日 18時09分）
毎日新聞 2006年10月7日 17時46分 （最終更新時間 10月7日 18時09分）
The gay problem in the GOP
By David Link | October 5, 2006
THE TRAGIC OPERA of former congressman Mark Foley is the revenge of don't ask, don't tell.
Foley, a Republican from Florida, resigned Friday after e-mails and instant messages between him and several teenage congressional pages surfaced. The Republican leadership knew that at least one page had gotten e-mails where Foley admired the body of one of the page's friends, and asked the page for a picture of himself, e-mails the page naturally found sick and a bit creepy.
Republican leaders responded to the potential political problem by telling Foley to knock it off. With respect to the larger issue, though, there was no asking or telling. The boy's own revulsion at the obviously inappropriate attention was ignored, not only by Foley's partisan fellows, but by some news outlets that also had seen the e-mails.
If this has a familiar ring, look in the Catholic Church for the bell. Republican leadership was acting like the Catholic hierarchy, which played shell games with men accused of sexually abusing children. And there's a good reason for the similarity. The inability to deal straightforwardly with gay people leads to other kinds of truth-avoidance when things go south. But that's what comes from not wanting to know something, and going out of your way to remain ignorant.
We've come a long way since homosexuals had two basic options: the closet or jail. But a good portion of the electorate, most of them Republican, still seems to long for the good old days when we didn't have to think about ``those people." Both Libertarians and, generally, the Democratic Party have withdrawn their official support for the closet over time. States, too, are seeing what a losing battle this is, and allowing homosexuals to live their lives in conformity with, rather than opposition to, the law.
But that leaves Republicans and the religious right trying to live a 1950s lie in the new millennium. As Foley prepared in 2003 to run for the Senate, newspapers in Florida and elsewhere published stories about his homosexuality. But you'd never hear any of his colleagues saying such a thing. And Foley himself refused to discuss the issue, until his lawyer acknowledged Wednesday that the former congressman is indeed gay.
Being in the closet is hard to pull off without help, and for years Foley was eagerly abetted by his Republican brethren, whose willful blindness is at the heart of the current tragedy. Speaker J. Dennis Hastert, majority leader John Boehner, and others in the House leadership are still under the impression that the closet, like Tinkerbell, will continue to live as long as we all believe. And believe, they do -- against all the evidence.
But the number of people who believe in the closet is declining day by day and generation by generation. Hastert and the rest of his cronies are their own victims. The political turmoil they caused for themselves is only just.
But their failure to acknowledge the obvious reality has other victims as well: the boys whom Foley apparently pursued. Some of the messages show some tolerance of Foley's advances, but not much more. This was no one's ``Summer of '42." The healthy disgust in one boy's use of the word ``sick" repeated 13 times seems about right.
But what can one expect from denying grown men -- and women -- a normal, adult sex life? Whether the denial of adult intimacy comes from religious conviction or the ordinary urge toward conformity, people who run away from their sexuality nearly always have to answer to nature somehow. For people who fear abiding and mutual love, the trust and confusion of the young is a godsend. Add to that the perquisites of power, and a degenerate is born.
Fortunately for the arc of justice, the closet ultimately works against itself. Foley's case and the Catholic Church's sex abuse scandal are the last screams of the dinosaurs. It took the dinosaurs a long time to finally die off, or evolve into creatures that could continue to survive, and the same will be true of the closet's final supporters. But they will look more and more ridiculous each time that they take pride in holding up the ruins of this particular antiquity while tending to the wounded when the building again collapses.
Like the Catholic Church, the Republican Party in Washington guarantees its own future calamities in its enduring and steadfast habit of pretending that, unlike heterosexuality, homosexuality can be either denied or suppressed.
David Link is a writer and attorney in Sacramento, and a member of the Independent Gay Forum.
© Copyright 2006 Globe Newspaper Company.
Out of Control By Eleanor Clift
Out of Control
The impact of the Foley scandal on the congressional races is less about values than it is a general sense that Congress has gone astray.
By Eleanor Clift
Updated: 4:37 p.m. ET Oct. 6, 2006
Oct. 6, 2006 - Republicans booed their likely next House speaker, Nancy Pelosi, when she rose to speak Wednesday evening “not only as Democratic leader but as a mother and grandmother.” Some shouted “Jefferson,” a lame attempt to find equivalency between a disgraced Democrat, Louisiana Rep. William Jefferson, currently under investigation for allegedly taking kickbacks, and Florida Republican Mark Foley, whose sexually predatory e-mails to teenage House pages has set off a round of recriminations among Republicans.
With the midterm election just five weeks away and GOP House leaders forming a circular firing squad, Pelosi is close to the point where she can start measuring the drapes in the speaker’s office. Even before Foley surfaced as an embarrassment for the Republicans, they were on track to lose their majority. The fact that the leaders of a political party known for stoking homophobia to win votes stood aside and did nothing for years to rein in Foley is further evidence the party has lost its way.
Everybody in Washington knew Foley was gay, but he never acknowledged it publicly until his lawyer announced it this week. Sneaking around is one of the problems of life in the closet, and when an elected official in the public eye, or anyone for that matter, lives this secret life, it’s a warping existence. Gay politicians need to get out there and live an adult life. And if the consequences are that they lose their jobs, that’s not the worst thing in the world. What Foley did was not about being gay but about abusing his power over young students—and it was compounded by the actions of his colleagues whose silence made them complicit.
The impact of the scandal on the congressional races is less about Foley and values than it is a general sense that Congress has spun out of control. “Foley is a symbol comparable to Terri Schiavo,” says Democratic pollster Stan Greenberg. Just as Congress’s ill-advised intervention into whether the brain-damaged Schiavo should be taken off life support reinforced a sense that the Republican-controlled Congress had been taken over by the Christian right, the Foley scandal feeds the perception that Congress is consumed with partisan infighting and unable to do the people’s business, that they care more about protecting their power than blowing the whistle on immoral behavior. “The Republican Congress is crashing in image,” says Greenberg. The Democrats don’t fare much better in Greenberg’s polling. “Democrats are just flat-lined through this period,” he says, an apt phrase suggesting a brain-dead party devoid of ideas and unwilling to take bold stands.
The public is right to be disgusted with Foley’s actions and angry at the way the Republicans covered up. But there’s no need for Democrats to get in the middle of what is a Republican free for all. When the opposition is self-destructing, get out of the way. Democrats who fuel the fire risk getting singed. Gay issues too easily turn into witch hunts. So far, only one Democratic candidate—Patty Wetterling, running for Congress in Minnesota—is directly playing off the Foley scandal by running an ad saying that congressional leaders had admitted covering up the congressman’s predatory behavior. Wetterling has more latitude than other candidates. She’s been a full-time child advocate since her 11-year-old son Jacob was abducted 17 years ago with no trace of him ever found.
Greenberg was in the field through Tuesday of this week polling 1,000 likely voters, tracking the reaction to Foley along with the fallout from Bob Woodward’s new book, “State of Denial.” Much of the elite media said the book revealed nothing new, that everyone knew Iraq was a mess. What Greenberg found is that having a journalist of Woodward’s standing say Bush hasn’t been telling the American people the truth allowed people to see facts in a new light and had a significant impact on attitudes about Bush and the war. Asked if the president has been mostly dishonest or mostly honest about Iraq, 56 percent said dishonest with 41 percent rating him mostly honest and 48 percent of those polled felt strongly that Bush had misled them about how bad things are in Iraq. “That’s a breathtaking number about a president in a war,” says James Carville, Greenberg’s sidekick and a colorful kibitzer on behalf of Democrats. Worsening news from Iraq reinforced the negative feelings with 21 U.S. servicemen killed in Iraq in the first four days of October.
The country is in turmoil over what’s happening in Washington, giving the Democrats a big lead going into the elections. A reporter asked Carville if the Foley scandal had never happened, did he think this poll would be a lot different? Carville insisted that despite Republican crowing about modest gains in recent weeks the race for Congress has stayed essentially the same since Hurricane Katrina 14 months ago. If the Republicans lose, he suspects they’ll blame it on Foley, but Foley is a symptom of a larger problem, a Congress that has gone astray. “I don’t think it would make two [percentage] points difference in anything if Foley were to rescue a drowning kid,” Carville said. “Right now this thing would be a rout.”
© 2006 MSNBC.com
The gay issue: GOP split between those seeing gay as sin and those wanting party to make room
Ex-Foley aide says he told on his boss before 2004
The gay issue: GOP split between those who see homosexuality as a sin and those who want party to make room for all
- Edward Epstein, San Francisco Chronicle Washington Bureau
Thursday, October 5, 2006
(10-05) 04:00 PDT Washington -- The resignation of Republican Rep. Mark Foley of Florida focuses anew a long-running fissure in the Republican Party between those on the right who view homosexuality as a sin that endangers the country and those who want the party to find a place in the GOP for all Americans.
Republicans are unanimous in their condemnation of Foley's behavior, but leaders of social and religious groups that are influential in the party have been repeating their anti-gay messages since the release of sexually explicit e-mails and text messages between the lawmaker and underage congressional pages.
Several of those conservatives say they believe House leaders decided last spring not to severely discipline Foley when they first learned of his contacts with a teenage former page because they were afraid of being accused of gay-bashing.
The six-term, 52-year-old former congressman had never acknowledged his homosexuality until Tuesday, when his lawyer disclosed the fact, although rumors about his sexual orientation had swirled for years.
House officials led by embattled Speaker Dennis Hastert, R-Ill. "discounted or downplayed earlier reports concerning Foley's behavior -- probably because they did not want to appear 'homophobic.' The Foley scandal shows what happens when political correctness is put ahead of protecting children,'' said Tony Perkins of the Family Research Council.
Hastert, however, has denied the contention and has refrained from commenting on Foley's sexuality. Instead, the Republican speaker has stressed his disgust for improper conduct by any adult with minors such as the teenage pages.
But social conservatives, including Perkins' powerful group and its allies, tie Foley's conduct directly to his homosexuality.
"The fact that Americans find former Representative Foley's alleged conduct reprehensible shows we have not bought into the false ideology that 'all sex should be celebrated' or that age of consent laws should be reduced as some special interest groups demand,'' said Wendy Wright, president of the conservative group Concerned Women for America. "Not all diversity should be accepted, and not all conduct or beliefs should be tolerated."
Some of the social conservatives say studies show there is an overlap between pedophilia and homosexuality, a charge gay groups dispute vigorously.
Perkins said that by brushing the Foley matter under the rug, the House has courted disaster, just as the Roman Catholic Church has done in scandals involving priests. "Ignoring this reality got the Catholic Church into trouble over abusive priests, and now it is doing the same to the House GOP leadership,'' he said.
Patrick Sammon, executive vice president of the Log Cabin Republicans, a 20,000-member national group of gay and lesbian Republicans, scoffed at the notion that Hastert and other GOP House leaders dragged their feet on the Foley case because of the gay-bashing issue.
"These anti-gay groups should be ashamed. They're trying to use this horrible situation to advance their own agenda. It's despicable,'' said Sammon, who decried Foley's conduct. "This is a personal and political scandal. It should not be used to denigrate gay and lesbian Americans.''
In San Francisco, Supervisor Tom Ammiano -- a Democrat -- said there was a practical reason behind the anti-gay rhetoric. "The gay issue for lots of Republicans is a cash cow,'' he said, referring to the fundraising generated by anti-gay rhetoric.
Sammon said he wouldn't predict the outcome of the Nov. 7 midterm congressional elections, although polls and many political analysts say the Foley affair boosts the chances for significant Republican losses.
He said he hoped the gay and lesbian communities wouldn't be blamed for any losses.
"Anyone who tries to use gay people as an excuse for what happens is just ridiculous,'' Sammon added.
Denis Dison, vice president of the Gay & Lesbian Victory Fund and Leadership Institute, a group that supports gay and lesbian candidates from all political parties, said the charge of a coverup because Republicans didn't want to bash gays makes no sense, given the debate over same-sex marriage and a proposed federal constitutional amendment to ban such unions.
"It's an absurd notion to say the leadership is so afraid of offending gay people that they'd let a child predator stay in office, while they aren't afraid of trying to amend the Constitution,'' Dison said.
San Francisco Supervisor Bevan Dufty said Republican leaders apparently weren't afraid of using Foley's then-hidden sexuality against him in 2003 when the congressman considered a U.S. Senate run in Florida.
"They bashed him (behind the scenes). They made it clear it would be ugly for him if he ran,'' Dufty said.
Foley dropped out of that race, saying he had to care for his ailing father.
Dufty, who worked as a Capitol Hill aide for two Democratic House members before moving to San Francisco, said he thought politics was the main reason House leaders didn't move early against Foley. "Political considerations trumped everything. They just wanted to ensure their incumbents' seats,'' he said.
E-mail Edward Epstein at firstname.lastname@example.org.
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Conservative Activists Considering Role of Gay Lawmakers
Living a Lie May Have Contributed to Mark Foley's Downfall
By JAKE TAPPER
WASHINGTON, Oct. 5, 2006— - Conservative activists are beginning to discuss the Mark Foley scandal as indicative of a GOP that has become too tolerant of gays in their midst.
Regardless of the party's efforts against gay marriage, the argument goes, the fact that Republican officials accept gay congressmen, such as Foley, and staffers will mean the party will have problems.
"As a society, we've made diversity and tolerance the guidepost of public life," Tony Perkins, president of the Family Research Council told ABC News. "Maybe we shouldn't be surprised that we have congressmen chasing after 16-year-old boys."
While to many this point of view will smack of sheer bigotry, the Foley scandal has indubitably brought one issue into the light: For generations, Washington, D.C., has been home to a community of gay and lesbian politicians and staffers who live in the closet, hiding their private lives for fear of ostracism if not persecution.
A question now being debated is whether Foley's homosexuality is part of the problem of what led to his inappropriate behavior with pages -- or, conversely, whether it stemmed at all from the fact that Foley felt forced to hide his orientation.
As former New Jersey Gov. Jim McGreevey, a Democrat, showed during his 2004 scandal, being a closeted gay politico is not exclusively a Republican affliction, though the Democratic Party is certainly considered a more hospitable place for gays and lesbians to work openly.
Many are uncomfortable with any discussion of Foley's predatory life being connected to his being gay.
Preying on teens is hardly an exclusively gay affliction, of course, and gay rights organizations have distanced themselves from Foley's behavior, saying the scandal is about inappropriate contact with minors, period, regardless of the sexual orientation of the players.
But interestingly, it isn't only social conservatives discussing a possible tie between sexual orientation and Foley's predatory behavior with pages.
Richard Isay, a Weisll Cornell Medical College professor of psychiatry and author who has studied gay men and women, says his psychiatric studies show that closeted gays who work for organizations that are inhospitable to them may be more prone to "doing things that are going to get themselves into trouble."
"If the atmosphere of the Republican Party is not hospitable to gay people … you're going to have more problems," Isay said.
In his academic opinion, Isay believes that Foley's pathology includes "much more than just this kind of behavior -- hitting on pages," but likely includes other kind of secretive behavior.
He also believes that Foley "had an enormous need to be caught and punished. You don't send e-mails to underage pages unless you want to be caught, and that's directly related to impoverished self-esteem and the need to be punished."
Gay conservative writer Andrew Sullivan wrote on his blog this week that the Foley scandal wasn't about pedophilia or homosexuality.
"[I]t's fundamentally about the closet," he wrote. "The closet is so psychologically destructive it often produces pathological behavior. When you compartmentalize your life, you sometimes act out in one compartment in ways that you would never condone in another one. Think Clinton-Lewinsky, in a heterosexual context. But closeted gay men are particularly vulnerable to this kind of thing. Your psyche is so split by decades of lies and deceptions and euphemisms that integrity and mental health suffer. No one should excuse Foley's creepy interactions; they are inexcusable, as is the alleged cover-up. … But there's a reason gay men in homophobic institutions behave in self-destructive ways."
Sullivan compared the Vatican and the Republican National Committee as places of "entrenched homophobia, psychologically damaged closet cases, inappropriate behavior toward teens and minors … and cover-ups designed entirely to retain power."
Social conservatives, however, have seized on the story line that homosexuality leads directly to interest in underage partners, though it should be noted that there's as yet no evidence of any improper physical contact between Foley and the former pages.
Paul Weyrich, an influential conservative who heads the Free Congress Foundation, told ABC News that "there is not a place for a gay representative to intersect with young pages. The reality is that many of them are interested in little boys. Not all of them, of course. But many of them."
Isay says there is "no evidence" that gay adults pursue sexual relationships with teenagers to a greater degree than straight adults.
"In our culture, youth is prized," Isay said. "It's no secret that straight men like to have sex with young people too."
Regardless, on Tuesday, the Arlington Group, a coalition of conservative organizations, released a letter expressing concern "that the early warnings of Mr. Foley's odd behavior toward young male pages may have been overlooked or treated with deference, fearing a backlash from the radical gay rights movement because of Mr. Foley's sexual orientation. It appears that the integrity of the conservative majority has given way to political correctness, trading the virtues of decency and respect for that of tolerance and diversity. No one should be surprised at the results of such a tragic exchange."
And there is agreement among liberals and conservatives that the existence of gays in the GOP may have contributed to Foley's behavior.
For liberals, it's the notion of being forced to be in the closet that is at issue.
"I do believe that he had unhealthy sexual advances to these guys because he was living his life as a closeted gay man," said Mike Rogers, a gay rights activist who specializes in "outing" closeted gay Republicans. "And that's what informs his actions. Had he lived his life honestly and openly and been proud of who he is, this would never would have happened."
Rep. Barney Frank, D-Mass., who publicly acknowledged his gay orientation in 1987, has said that a sex scandal in which he was embroiled in the 1980s was at least partly a result of his secret life.
"Two and a half years after I voluntarily acknowledged being gay, a hustler with whom I had been involved tried to become rich, not only by publicizing our relationship but by luridly fictionalizing it," Frank wrote in the gay magazine The Advocate in 2002. "I was able to deal with the fictional parts by refuting them in front of the House Ethics Committee. As to what I had done wrong -- paying him for sex -- I noted that trying to live a closeted life while being publicly prominent proved to be emotionally, physically, and in every other way more difficult than I had anticipated, resulting in extreme emotional stupidity."
There are currently only three openly gay members of Congress: Frank; Rep. Jim Kolbe, R-Ariz., who outed himself right before The Advocate planned to do so in 1996; and Rep. Tammy Baldwin, D-Wis.
Gay Congressional Staffers
But there is a much larger network of gay and lesbian staffers, including those in prominent positions, for conservative politicians in fervent opposition to gay rights.
Former Republican Rep. Ed Schrock of Virginia -- a conservative voice against gays in the military and against gay marriage -- resigned in 2004, after Rogers posted online voice recordings of him soliciting gay sex.
Schrock currently works as staff director for a House subcommittee.
Kirk Fordham, who resigned Wednesday as chief of staff to Rep. Tom Reynolds, R-N.Y., told the FBI today that as Foley's chief of staff as far back as 2003, he'd warned Hastert about Foley's inappropriate behavior with pages.
Fordham, who is openly gay, has been the subject of discussion by Hastert allies that the GOP leadership was hurt last week by Fordham's attempt to protect Foley from the fallout of news that he had sent inappropriate Internet messages to former pages.
The subtext of this talk seemed to be that there was a sort of "velvet mafia" of gay staffers and politicians who looked out for one another.
That may not square with Fordham's allegation -- denied by Hastert's office -- that he warned the GOP leadership about Foley as much as three years ago, but it has become a talking point among the blabbocracy on cable TV.
For a GQ story I wrote on the subject in 2005, Frank told me that "the Republican attitude is that they have now moved to the point where they accept the fact that you're gay as long as you act somewhat embarrassed about it."
More to the point, perhaps, came comments from a gay Republican congressional staffer, who said that ours "is a representative democracy, and while members [of Congress] may not have personal problems with having gay staff, they vote the way their constituents want them to."
The staffer described "a devoted minority" of congressmen and senators who "care very intensely" about stopping any gay rights.
But "25 of them are going to go to the mat on the issue" while "75 percent are like, 'OK, fine, whatever.'"
Gays in Government
The debate over the role of gays in civic life has been a part of the American story at least as far back as March 11, 1778, when Gen. George Washington approved the court martial of Lt. Gotthold Frederick Enslin for homosexuality.
In the preceding century in particular, it became something of a minor obsession.
From the U.S. Senate Naval Affairs Committee's "Report on Alleged Immoral Conditions and Practices at the Naval Training Station, Newport, RI" in 1921, to the Senate Committee on Expenditures in the Executive Department's report "The Employment of Homosexuals and Other Sex Perverts in Government" in 1951, bureaucrats have long been studying and grappling with whether homosexuals should work in government at all.
Largely the justification for such discrimination came in the argument that gays were more likely to become spies because they were susceptible to blackmail.
In 1953, President Eisenhower signed Executive Order 10450, resulting in the termination of more than 600 federal employees for "sexual perversion."
However unjust gay and lesbian rights groups might consider the America of 2006, it is nothing less than astounding to realize how much matters have changed not just since Ike, but in just the last few decades.
It was 1974 when the first U.S. elected officeholder came out of the closet, and a full seven years later when the first openly gay judge was appointed.
That was in San Francisco, perhaps unsurprisingly. But even though plenty of people may have been here and queer in the Bay Area, society was still getting used to it.
In 1982, then-Mayor of San Francisco Dianne Feinstein vetoed a bill allowing domestic partnership benefits for gay and lesbian city employees.
Indeed, even while the country grows more conservative on a host of domestic issues -- abortion, to name but one -- gay rights is the one issue Americans seem to be coming to an increasingly liberal view.
When then-Gov. Howard Dean signed Vermont's civil unions bill into law in 2000, conservatives declared the pending Apocalypse and within months the Vermont legislature turned Republican.
But only four years later, just days before his re-election, President Bush would tell ABC News' Charlie Gibson that while he viewed "the definition of marriage different from legal arrangements that enable people to have rights," he didn't "think we should deny people rights to a civil union, a legal arrangement, if that's what a state chooses to do so."
Regardless, Bush's fellow Republican Mark Foley didn't feel comfortable publicly announcing that he is gay until this week, after he was out of Congress and at a point when his being gay was hardly the most scandalous news about him.
ABC News' Sara Just, Ashley Phillips and Gigi Stone contributed to this report.
Copyright © 2006 ABC News Internet Ventures
Path Is Risky for Gay GOP Politicians
Appeals Court Upholds State's Ban on Same-Sex Marriage
Dissenting justice says the 2-1 ruling, which will go to the California Supreme Court, diminishes the 'humanity' of homosexuals.
By Maura Dolan and Lee Romney
Los Angeles Times Staff Writers
October 6, 2006
SAN FRANCISCO — A state appeals court upheld a ban on same-sex marriage Thursday, ruling 2 to 1 that only the Legislature or voters can change California's traditional definition of marriage.
"Courts simply do not have the authority to create new rights, especially when doing so involves the definition of so fundamental an institution as marriage," William McGuiness, presiding justice of the 1st District Court of Appeal, wrote for the majority.
The ruling, which will be appealed to the California Supreme Court, overturned a trial judge's decision last year that the ban violated the state Constitution. The state high court is expected to get the case by the end of the year.
Thursday's ruling follows decisions against same-sex marriage by high courts in Washington and New York.
Some states also have amended their constitutions to thwart legal challenges by gay activists.
The high court of Massachusetts is the only top state court that has ended a ban on same-sex matrimony.
Ruling in the California case, the court's majority said the historic definition of marriage did not deprive gays and lesbians of a fundamental right, particularly since same-sex unions have been protected under domestic-partnership laws.
"The time may come when California chooses to expand the definition of marriage to encompass same-sex unions," wrote McGuiness, who was appointed by then-Gov. Pete Wilson. "That change must come from democratic processes, however, not by judicial fiat."
By contrast, Gov. Arnold Schwarzenegger said last year that the ban on same-sex marriage was a matter for the courts to decide. Schwarzenegger vetoed a bill that would have permitted same-sex couples to marry.
In a written statement, Schwarzenegger said Thursday that the state's marriage laws should be changed only by the courts or the electorate.
"The governor respects the court's decision as this issue works through the legal process," the statement said.
Justice J. Anthony Kline, in a blistering 51-page dissent, complained that the ruling diminished "the humanity of the lesbians and gay men whose rights are defeated."
"Judicial opinions upholding blanket denial of the right of gay men and lesbians to enter society's most fundamental and sacred institution are as incompatible with liberty and equality, as inhumane, as the many opinions that upheld denial of that right to interracial couples," said Kline, an appointee of then-Gov. Jerry Brown. "Like them, such opinions will not stand the test of time."
Justice Joanne C. Parrilli, a Wilson appointee, said in a concurring opinion that Kline had been swayed "emotionally" and overreached in applying the law.
"Marriage has historically stood for the principle that men and women who may, without planning or intending to do so, give life to a child should raise that child in a bonded, cooperative and enduring relationship," Parrilli wrote.
The fact that state law recognizes that function "is hardly irrational," she said. By the same token, the state's domestic-partners law is aimed at protecting same-sex couples "in no small part, for the sake of the children involved."
The ruling gives the California Supreme Court "an option to punt" on the marriage question by merely declining to review the appeals court decision, said Santa Clara University law professor Gerald Uelmen, an expert on the state high court.
But Uelmen and other lawyers said they expected the court to take the case and produce a fractured ruling.
"This is just too big an issue to let it be decided at this level," Uelmen said.
University of Richmond law professor Carl W. Tobias said the majority relied heavily on the notion that it had to defer to the Legislature, a prevalent practice by judges who fear being labeled activist.
"It is kind of an easy way out," Tobias said. He also predicted that the California Supreme Court would not be able to produce a unanimous decision, noting that other state high courts have been divided on same-sex marriage.
California's high court has six Republicans and one Democrat. The court is viewed as cautious and moderate to conservative. It grappled with same-sex marriage two years ago when San Francisco Mayor Gavin Newsom allowed gays and lesbians to marry.
Without ruling on the constitutionality of the ban on same-sex marriage, the court decided that Newsom lacked authority to violate state law — and invalidated the nearly 4,000 marriage licenses issued to same-sex couples in February 2004. Two of the seven justices dissented in the part of the ruling that nullified the licenses.
Shannon Minter, legal director of the National Center for Lesbian Rights, which represented 16 same-sex couples in one of the lawsuits before the court, complained that the "majority abdicated their judicial responsibility" Thursday.
"It is incorrect and unfair to say that the courts don't have the responsibility to decide whether excluding a group of people from marriage is constitutional," Minter said. "That is their job. That is exactly what the governor said."
Conservative Christian groups involved in the litigation reacted with glee, even though the appeals court said they lacked standing in the case.
"It's a crushing defeat for the same-sex-marriage movement," said Mathew Staver, president and general counsel of Florida-based Liberty Counsel, the legal group that filed suit on behalf of Campaign for California Families.
Looking toward the appeal, Staver said Thursday's ruling "sets us up nicely for the California Supreme Court."
Glen Lavy, senior vice president of the Arizona-based Alliance Defense Fund's Marriage Litigation Center, said the ruling was consistent with the decisions in the high courts of New York and Washington.
"That doesn't mean the battle is anywhere near over," Lavy said. "It just means it's going to shift. Those who want to change marriage have failed to do it by the courts. If they are going to do it at all, they are going to have to do it by persuading people."
Couples who had filed suit demanding the right to marry said the ruling devastated them, but they expressed hope that the state high court would overturn it.
Among the plaintiffs was Jeanne Rizzo, 60, of Marin, who has lived with Pali Cooper for 17 years. Together, they raised Rizzo's son from a previous marriage.
"I'm tremendously disappointed," Rizzo said. "We keep seeming to lose by one vote everything that's important to us. It'll go to the Supreme Court. I know we're going to appeal it. But it's hard to hear. It's going to be hard to call my kid and tell him."
At a news conference shortly after the ruling was issued, San Francisco City Atty. Dennis J. Herrera said the majority's decision "lacked courage." San Francisco was one of the litigants challenging the state's marriage laws.
"If other courts had followed this reasoning, schools would still be segregated, and married couples would not be able to use birth control," said Herrera.
Newsom, whose decision to marry same-sex couples ignited the litigation, said the ruling was "insulting" in its implication that domestic partnerships and civil unions were the equivalent of marriage.
"I am not going to say it was cowardly, but it was hardly groundbreaking," Gavin said. "It talked about tradition. It talked about procreation. Give me a break."
The New York Times
California Court Upholds State’s Ban on Same-Sex Marriage
By JESSE McKINLEY
Published: October 6, 2006
SAN FRANCISCO, Oct. 5 — In the latest turn to a long and winding legal fight over same-sex marriage, a California appeals court on Thursday upheld the state’s ban against it.
The 2-to-1 decision, which reversed a lower court’s finding that the ban violated the California Constitution, said the plaintiffs in the case were asking the courts “to recognize a new right,” a step it said only the Legislature or the voters could take.
“Courts simply do not have the authority to create new rights,” said the decision, written by Justice William McGuiness, “especially when doing so involves changing the definition of so fundamental an institution as marriage.”
Justice J. Anthony Kline dissented, taking issue in part with the majority’s contention that because of domestic partnership laws, same-sex couples had rights comparable to those of married heterosexuals.
Domestic partnership and marriage are inherently unequal, Justice Kline said.
Dennis Herrera, the city attorney for San Francisco, said that the decision was a disappointment but that the city and other plaintiffs would appeal to the California Supreme Court.
San Francisco threw one of the first punches in the gay-marriage battle in February 2004, when Mayor Gavin C. Newsom directed the city’s clerk to begin issuing marriage licenses for same-sex couples. The move was almost immediately challenged in court.
Those challenges were upheld in 2004 by the State Supreme Court, which said Mr. Newsom had overstepped his authority but which stopped short of ruling on the constitutionality of state marriage laws, including a 2000 ballot measure, Proposition 22, that defined marriage as the union of man and a woman.
A decision on the constitutionality of the laws was not long in coming, however. In April 2005, Judge Richard A. Kramer of San Francisco County Superior Court ruled that limiting marriage to people of the opposite sex impinged on a fundamental right to marry, and declared the ban unconstitutional.
Like previous decisions, Judge Kramer’s ruling was immediately appealed. It was this appeal that led to Thursday’s decision.
Groups opposed to gay marriage characterized the appellate court’s ruling as a “crushing defeat to the same-sex-marriage agenda.”
In a statement, Matthew D. Staver, the founder and chairman of Liberty Counsel, which argued the case for an anti-gay-marriage group, said: “The marital union of a man and a woman uniquely fosters responsible procreation, contributes to the continuing well-being of men and women, to society, to children and to the state. Same-sex relationships by definition and nature cannot constitute marriage.”
The mood among supporters of a right to same-sex marriage, meanwhile, was still optimistic, despite a series of earlier legal setbacks around the nation, including defeats at the high-court level in New York and Washington State and Gov. Arnold Schwarzenegger’s veto of a bill, adopted by the Democratic-controlled Legislature, that would have lifted California’s ban.
Jon W. Davidson, legal director of the gay rights group Lambda Legal, said the organization had always believed that the issue was bound for the State Supreme Court.
“Many of these cases around the country have been very close,” Mr. Davidson said. “It’s hard to know for sure what the California Supreme Court would do, but I think we would get a fair shake there.”
California: Gay marriage advocates vow to appeal