A FAILED EFFORT AT TRIANGULATION: CATHEDRAL CITY MAYOR KATHLEEN DeROSA’S ATTEMPT TO AVOID TAKING A FORTHRIGHT STAND ON MARRIAGE EQUALITY

Summary:  Embattled Cathedral city Mayor Kathleen J. DeRosa’s attempt to triangulate on the issue of marriage equality, by declaring that as a Catholic, she cannot support marriage equality, but might support some sort of “Civil Union” for LGBT couples is unsustainable.  It fails on two critical grounds.  First, “Civil Unions” is no longer an acceptable “Plan B.” fallback position behind which an un-forthright politician may hide.  Second, to the extent that Ms. DeRosa seeks to justify her position on dogmatic sectarian grounds, her conduct is at unacceptable variance with the obligations she voluntarily assumed when she took the oath of office prescribed in Article XX of the California Constitution.  Ms. DeRosa’s constituents deserve better from her then such tergiversation and triangulation.

By:  Paul S. Marchand

Speaking to constituents at a candidate forum in Cathedral City the other night, embattled fourth-term Cathedral City Mayor Kathleen J. DeRosa responded to a constituent question about her views on marriage equality.  DeRosa stated that, as a Catholic, she could not support same-gender marriage by that name, but that she might be open to calling it something else.  Such a position is unsustainable on two equally compelling grounds.


DeROSA’S POSITION FAILS BECAUSE IT ADVOCATES LESS THAN EQUAL PROTECTION

Unfortunately for DeRosa, her effort to triangulate has been overtaken by events.  “Civil Unions” is no longer an acceptable Plan B fallback position.  Politicians must now take unambiguous, non-triangulating, positions on whether Ruth and Naomi or Jonathan and David should be able to get civilly hitched and call themselves married.  Marrriage, by that name, not some other, such as “Civil Unions”, is now the default position.

“Civil Unions” came to us in December 1999, when the Vermont Supreme Court ordered that state’s Legislature either to extend the liberty of marital contract to same-gender couples or to come up with a legislative equivalent to marriage for same-gender couples.  Vermont’s solution, “Civil Unions” has now entered America’s political lexicon as a shorthand for something that comes close to being same-gender marriage, without using the M-word.

It was perhaps inevitable that the Vermont Legislature and then Gov. Howard Dean chose “Civil Unions” over the M-word.   Yet, what has rightly concerned the community about civil unions per se is that they represent a risky and problematic “separate but equal” status for gay and lesbian families; the history of “separate but equal” is one in which “separate but equal” has invariably become separate and unequal.  Yet, politics is always about the art of the possible; great advances are often the result of incremental, evolutionary, steps:  as a former senior staffer for the City of Cathedral City used to put matters: You eat the elephant one bite at a time.
   
Yet, with more American jurisdictions embracing marriage equality, the elephant is going down.  Politicians can no longer indulge in the squishy luxury of attempting to avoid taking a forthright position on marriage equality.  Because “Civil Unions” inevitably become “separate and unequal,” DeRosa’s position is unsustainable as a matter of sound constitutional law and principle.

DeROSA’S POSITION IS UNSUSTAINABLE BECAUSE IT INAPPROPRIATELY INVOKES A RELIGIOUS SANCTION TO DENY THE CIVIL RIGHTS OF A SUBSTANTIAL PART OF THE COMMUNITY.

In attempting to rationalize her opposition to marriage equality, the embattled mayor invoked her religious confession, declaring that “as a Catholic” she could not support full marriage equality.  Invoking any denominational dogma to justify denying or abridging the civil rights of a significant and identifiable group within a body politic is inappropriate and unacceptable.

Posting recently on Facebook, The Rev. Canon Susan Russell, of All Saints’ Church, Pasadena, opined that “Religious persecution is when you're prevented from exercising your beliefs: not when you're prevented from imposing your beliefs.”  Too many denominational adherents have falsely claimed that marriage equality represents some kind of attack on their religious freedom.  Such claims of victimhood are trite nonsense.  The free exercise right guaranteed by the First Amendment was never intended as a sword, but only as a shield.  There is no free exercise right to deny, infringe, or abridge the fundamental rights of others in the Commonwealth in order to assuage the claimed religious discomfort of particular sectarian adherents.

Moreover, invoking some sort of sectarian sanction to justify a particular position on policy -- especially one that denies basic civil rights to discrete and insular minority groups within the Commonwealth is not constitutionally sustainable.  Elected public officials in California take an oath to uphold the Constitutions of the United States and of the State of California.  Each of those constitutions contains clauses forbidding governmental establishments of religion or prohibiting the free exercise thereof. 

For a public official to justify a discriminatory policy because he or she is an adherent of a particular religious denomination is a naked violation of the oath required of every office holder under Article XX of the California Constitution.  We have a right to expect our public officials to comply with oaths duly taken; we deserve better than such tergiversation and triangulation.
  
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Paul S. Marchand is an attorney who lives and works in Cathedral City, California, where he served two terms on the city council and is running to return to the council after a two year hiatus.  In 1993, he was one of the first California attorneys to challenge California’s same-gender marriage ban.  The views set forth herein are his own, and not necessarily those of any organization with which he is associated.  They are not intended to constitute, and should not be construed as constituting, legal advice.