Frank: A Life in Politics from the Great Society to Same-Sex Marriage (35 page)

With control of the presidency, the House, and the Senate for the first time since 1954, the Republicans realized the cherished goal of the antigovernment purists: They starved the beast to a subsistence level. Their formula was elegantly simple and brutally effective. They killed two liberal birds with one package, enacting tax cuts that significantly reduced government revenues while also making the tax code substantially less progressive than it had been after the 1993 increases. Incredibly, when the administration responded to the 9/11 attacks by launching two wars, the tax cuts continued. Never before had our country coupled sudden, massive increases in military expenditures with a very large reduction in our ability to pay for them. What made this all the more galling was its accidental provenance. Gore and Nader received three million more votes than Bush and Pat Buchanan combined, meaning that a healthy majority of the electorate had voted for candidates committed to increasing the government’s economic role.

Bush himself offered a tantalizing glimpse of what a Gore presidency could have accomplished when he pushed a prescription drug benefit for Medicare recipients through Congress. Democrats opposed it because it deferred to pharmaceutical industry demands and therefore made pills for seniors cost more than they otherwise would have. Most egregiously, it banned the import of drugs from Canada and prohibited the government from using its purchasing power to bargain for lower prices. The argument against imports from Canada was the insincere claim that they might endanger old people’s health—it was advanced by those who more often accused drug safety regulators of overreaching. I will drop my charge of insincerity the first time I read about defective drugs producing a lot of dead Canadians.

Throughout this debate, Republicans stressed the importance of harnessing the profit motive even though their bill truly rested on a progovernment basis. If a Gore administration had passed such a program, it would have stressed that the public sector was meeting an important societal need—which would in turn have helped strengthen belief in government.

The basis for my wishful—wistful?—thinking is an indisputable economic fact. When Clinton left office, the nation’s fiscal outlook was so favorable that Alan Greenspan warned that the national debt should not be fully paid off, since some level of debt was necessary to the conduct of monetary policy. If Gore had taken office, he would have been able to enact a tax cut, smaller than Bush’s but still popular, while expanding government programs in several areas.

I do not write this only to remind myself of the phrase I’d always attributed to the great sportswriter Grantland Rice—but that my research assistant tells me stems from John Greenleaf Whittier: “For all sad words of tongue or pen, the saddest are these: ‘It might have been.’” I also seek to buttress one of my central arguments: The antigovernment feelings that followed the pattern-setting events of 2001–2003 reflected not a conscious decision by the majority of voters to repudiate the notion of collective action but rather the successful Republican effort to widen the gap between the demands made on government and its capacity to respond to them.

*

Substantively speaking, I might as well not have been a member for Bush’s first two years. As the administration prepared to invade Iraq, I agreed that Saddam Hussein was a terrible ruler. But I also argued that there were a number of other very bad rulers in the world, some worse than Saddam in my judgment, and that it was neither possible nor desirable for the United States to go to war to overthrow all of them. I was wholly skeptical of the administration’s claim that Iraq had weapons of mass destruction, and equally skeptical of the claim that it might have been involved in 9/11. The notion of an alliance between the murderous religious fanatic Osama bin Laden and the equally murderous secular tyrant Saddam Hussein had no basis. I did support action against terrorists when we knew where they were—as in Afghanistan.

I also believed that the War on Terror required significant efforts to build up internal security, although some of those efforts would end up going much further than necessary. As a member of the Judiciary Committee, I helped to write an early version of the Patriot Act. This was one of the best nonpartisan collaborations on a major bill of my career. The effort was led by Judiciary Committee chair Jim Sensenbrenner, a mainstream conservative Republican with a stronger respect for civil liberties than is usually found in that faction. Despite a temperament that could make me look like Little Mary Sunshine, he worked well with our very liberal ranking Democrat, John Conyers, and others. We fashioned a draft that balanced the competing claims of national security and individual rights so well that it was unanimously supported by our ideologically divided committee. But the Bush administration was in no mood for balance. At the urging of John Ashcroft’s Justice Department, the Republican House leadership rejected our bill and used the House Rules Committee to substitute a harsher, unbalanced one. (To take one example of the differences: Our approach put much better controls on the government’s ability to engage in unrestricted and secretive surveillance of Americans.) There was little we could do except protest.

With many of my Democratic colleagues reluctant to oppose deep tax cuts, and even more of them eager to support the administration’s response to terrorism, whatever it was, I had little sway. On the dominant issues, I was more isolated than at any other time in my tenure.

*

In 2003, the Massachusetts Supreme Judicial Court delivered a historic decision: It ruled that same-sex couples had a right to marry. Chief Justice Margaret Marshall’s eloquent opinion in
Goodridge v. Department of Public Health
was based on the state constitution and could be reversed only by the actions of two successive elected legislatures, and then a referendum. I responded very positively. As Marc Solomon points out in his book
Winning Marriage
, I was one of the few elected officials to defend not just the court’s right to make the decision but also the substantive decision itself and the value of same-sex marriage.

As we expected, the state legislature did not greet the court’s decision with equanimity. By a vote of 105 to 92, it took the first step toward authorizing a referendum to overturn it. This meant that the legislature to be elected in 2004 would decide whether or not our right to marry would be on the 2006 ballot.

As a candidate for the next available Republican presidential nomination, Mitt Romney, Massachusetts governor at the time, saw a chance to turn a potential liability into an asset. Instead of being the governor on whose watch same-sex marriage was established, he could act to repel the menace by campaigning aggressively for Republican legislative candidates. He could stop men from marrying men and women marrying women and boost Republican strength in Democratic Massachusetts at the same time. (Though he had never expressed support for same-sex marriages, he had said in 1994 that he would support LGBT rights more strongly than his opponent at the time, Ted Kennedy—as perfectly inaccurate a description of Romney’s subsequent career as the boundaries of the English language permit.)

As the 2004 campaign heated up, I turned my schedule over to a disciplined and effective organization, MassEquality, and became a featured attraction at events for besieged Democrats in various parts of the state. I was now spending the bulk of my time campaigning for legislators who’d been targeted for defeat because they had supported my right to marry. This earned me the respect not just of the liberals in the party but also of Democrats across the board. I was not only the gay defender of gay rights. I was one of the frontline Democrats in an all-out partisan war.

In the end, we won almost all the fights Romney picked. As it became clear there was no popular demand to overturn the court’s decision, the antimarriage forces were left with only thirty-nine legislative supporters in 2005. There would be no referendum in 2006. Our rights had been first affirmed by the judiciary but, crucially, we used that affirmation as a foothold to win over public opinion.

As the Democratic nominee for president, John Kerry expressed his opposition to same-sex marriage while also expressing respect for the Massachusetts court. I agreed with this approach. Public opinion in the country was still strongly antimarriage, and with DOMA already federal law, his support for gay marriage would have made Bush’s reelection more likely, while doing nothing for us substantively. Kerry’s position was also easy to defend before LGBT audiences because he had been one of the fourteen senators who had voted against the Defense of Marriage Act.

I did differ with Kerry over the best way to present his position. As we drove to a crucial meeting in Washington cosponsored by the Human Rights Campaign, he told me how he planned to explain his stand. My advice was that he simply state his view and not elaborate.

As I’ve reflected before, it’s bad enough to tell people you disagree with them. It’s far more aggravating when you tell them they’re wrong on the merits, especially if you go on to validate some of the arguments that are commonly used against them. Given his commitment to reasoned political dialogue, Kerry not surprisingly objected to my advice, saying that voters would want to know why he took his stand. I replied that on this issue, the electorate was divided into two groups. Those who agreed that same-sex marriages should be banned would not ask for a longer answer. Since I’d entered public life in 1967, no group had ever demanded that I elaborate on my reasons for agreeing with them. Those who disagreed with him might demand a longer answer, but they’d only become angrier when they received one.

Exasperated, Kerry pointed out that if all he did was state his opposition, LGBT people would think he had taken his stand on purely political grounds. That, I told him, was exactly what I hoped they would think: Here was a potential ally who wasn’t yet ready to join us, but he had no fundamental intellectual or philosophical objection to doing so later when the political climate had improved. Morally, I admire a politician who differs with me on principle more than one whose opposition is based on public opinion. But pragmatically, if I had the power to decide which one should hold office, I would pick the latter.

*

As the campaign went on, the Republicans turned their opposition to LGBT rights into a national issue. They hadn’t done this since the Defense of Marriage Act debate eight years earlier. This time, they sought to pass a constitutional amendment that would prohibit the recognition of same-sex marriages by the federal government or any state. The amendment would snuff out the Massachusetts experiment and any others. Gallingly, one of its major advocates was Bush’s designated Republican National Committee chairman, Ken Mehlman, whose homosexuality was widely suspected within the LGBT community. I wrote a public letter to him snarkily hinting that it was hypocritical for him to play that role. He did not respond, but I nurse the hope that my jab was one of the straws that eventually led him to break down the closet door and come out publicly in 2010. (I take my disrespect for metaphors as a license to mix them.)

In Massachusetts and elsewhere, the LGBT community turned its strong emotions into disciplined political action. I was confident that we had the support of enough Democrats to block Bush’s anti-same-sex marriage amendment in Congress, where it would need to pass each chamber with a two-thirds majority. But an unexpected problem arose—elected officials whose eagerness to win our support swamped their understanding of how to help us.

Exhibit A was Gavin Newsom, the mayor of San Francisco. In February 2004, not long after the Massachusetts court ruling, Nancy Pelosi asked me to give him a call. He told me that he was thinking of using his authority as mayor to declare same-sex marriages legal in the city, and to authorize officials, including himself, to perform them. I told him this would be a well-intentioned mistake. Our discussion confirmed my understanding that in California, as elsewhere in the United States, marriage was governed by state law, and municipally authorized marriages would have no legal validity. If Newsom did have the power to confer binding marital status on men and women who loved a same-sex partner, that would have trumped any strategic or tactical consideration. But he did not.

Newsom’s drastic move, and similar actions by a handful of local officials around the country, regrettably bolstered the GOP argument that an antimarriage amendment was needed. I knew from my constant lobbying on the subject that our margin of support in Congress depended on colleagues in moderate and conservative contested districts being able to explain to their constituents that the vote was all about Massachusetts and not their own states. Even without the amendment, they could say, we Pennsylvanians or Ohioans would retain total control over whether or not we allow women or men to marry each other. I hoped that this argument, combined with the popularity of states’ rights and the view that our great Constitution should not be altered lightly, would hold enough Democrats for us to win.

This is why the let-a-hundred-marriage-jurisdictions-bloom movement that Newsom was spearheading posed a serious threat. With his action, that of a small-town mayor in New York State, and local officials in two or three other states, same-sex marriage was no longer a reality only in Massachusetts. If any local official could simply wave a municipal wand and legitimize same-sex marriages, then no members of Congress were insulated from the demand that they protect their states from such a possibility. I was sure that if Newsom’s gambit were repeated in fifteen or twenty states, the amendment would pass, wiping out our gains and preventing future ones. (Bush’s proposal, it should be stressed, would have prohibited same-sex marriage in any state even if a majority of the state’s residents voted for it.)

This situation created a quandary for me. If I publicly expressed my opposition to Newsom’s initiative, it would be misrepresented by some as opposition to all same-sex marriages, not just to the pretend ones. Getting across the proper distinction would be hard. Fortunately for our long-term success, local courts in New York and elsewhere quickly clarified the matter by laying down the law against the marriages. And I was relieved of having to decide if I should go public with my views when Newsom himself or someone close to him apparently did so for me. I had given Newsom the advice he solicited in confidence and did not plan to say anything about having tendered it. I was therefore surprised when a San Francisco publication called shortly after we spoke and asked me why I had tried to dissuade the mayor from taking his pro-LGBT step. My unhappy guess—I don’t know for certain—is he believed that if people knew he had taken a bold step despite my urging caution, it would elevate his standing as our champion even more.

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