San Francisco Mayor Laid The Foundation for Marriage Ruling

by: Be_Devine

Thu Jun 26, 2008 at 15:20:58 PM PDT

Many courageous and hard-working women and men deserve credit for the recent marriage victory in California. But there is one man whose courageous stand for civil liberties laid the groundwork for the monumental California Supreme Court decision. Once a member of the San Francisco Board of Supervisors, this man would go on to become the mayor of the great City of San Francisco. Although he was straight and married, he was a strong advocate for the rights of people in LGBT community. He was criticized by many for standing up for the fundamental rights of those who did not have a strong voice in politics. But as history played itself out, his firm stand in favor of civil liberties was vindicated.

The man’s name, of course, is George Moscone.

The California Supreme Court's decision in In re: Marriage Cases was premised upon the right to privacy contained in the California State Constitution.  In the decision of the Court, Chief Justice Ronald George wrote: “Our cases make clear that the right to marry is an integral component of an individual’s interest in personal autonomy protected by the privacy provision of Article 1, Section 1.”

We think of the right to privacy as something that has been around for time immemorial.  Or at least around as long as John McCain.  But, in fact, California's constitutional protection of the right to privacy was created just a few months before I was created.  And it is George Moscone who we can thank for fighting the battle to create the constitutionally-protected right to privacy in 1972.

More on the flip . . . 

Along with Assemblyman Kenneth Cory, State Senator George Moscone authored what would become known as the Privacy Initiative.  In November 1972, the Privacy Initiative was submitted to California voters as Proposition 11.  It passed overwhelmingly.

Proposition 11 is remarkable in its simplicity.  Aside from changing the sexist reference to "men" to "people," it added a single word to Article I, Section I of the California Constitution: privacy.   Kenneth Cory and George Moscone's proposed amendment was as follows:

SECTION 1. All men people are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty; acquiring, possessing, and protecting property; and pursuing and obtaining safety, and happiness, and privacy.

The right of privacy is the right to be left alone. It is a fundamental and compelling interest. It protects our homes, our families, our thoughts, our emotions, our expressions, our personalities, our freedom to associate with the people we choose.  (emphasis mine).

The California Supreme Court has a long history of relying on Cory and Moscone's argument from the Ballot Pamphlet.  On at least two occasions, the Supreme Court has looked to this argument to help define the scope of California's constitutional right to privacy.  In the 1975 case of White v. Davis, the Supreme Court held that Cory and Moscone's argument represents, in essence, a "legislative history" that can assist the Court in interpreting the scope of the constitutional amendment.  Two decades later, in the 1994 case of  Hill v. N.C.A.A., the Supreme Court held:

The Privacy Initiative is to be interpreted and applied in a manner consistent with the probable intent of the body enacting it: the voters of the State of California. When, as here, the language of an initiative measure does not point to a definitive resolution of a question of interpretation, " 'it is appropriate to consider indicia of the voters' intent other than the language of the provision itself.' . . . Such indicia include the analysis and arguments contained in the official ballot pamphlet."

George Moscone is widely recognized as a martyr of the LGBT rights movement because he was assassinated along with Harvey Milk.  He is also remembered as helping to push through AB 489 which, in 1975, decriminalized consensual sex between same-sex couples in California.  The connection between Moscone's work on the Privacy Initiative and the California Supreme Court's marriage decision is not discussed as often as it perhaps should be.  As the marriage case shows, George Moscone's work in the California Legislature is a gift that keeps giving. 

I hope that when the lists are made of all the leaders who deserve credit for marriage equality, people will not forget that there was a good looking, straight mayor from San Francisco who helped lay the foundation upon which that right was built.