SB 54 Returned Marriage To Department of Health and Human Services Director

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By Dan Aiello
California Progress Report

When California's Republican governor, Arnold Schwarzenegger, signed into law last month legislation recognizing some same-sex marriages performed out of state, the director of the state's Department of Health and Human Services regained his legal status as a married man.

So did his husband.

John A. Wagner, DHHS Director, also is the highest-ranking, openly gay, legally married administration official.

The legislation, Senate Bill 54, clarifies that same-sex couples who married outside of California before Proposition 8 went into effect November 5, 2008, are recognized as married spouses by the state of California. It was authored by openly gay state Senator Mark Leno (D-San Francisco).

Schwarzenegger appointed Wagner director of the California Department of Social Services in April 2007 and praised Wagner for "his commitment to the well-being of society's most vulnerable individuals."

Wagner, 47, was the acting commissioner of Massachusetts' Department of Transitional Assistance at the time, and legally married by the State of Massachusetts. Wagner and his spouse, Rick Keyes, 48, an IT consultant, were married in Massachusetts on May 17, 2004.

"The very first day it was legal in this country to marry, we did," Wagner told California Progress Report. The couple had been together 15 years, after a chance meeting volunteering at a Milwaukee AIDS crisis hotline center in 1991.

The couple's long-term relationship had been legally recognized as a marriage by Massachusetts for three years before Schwarzenegger appointed Wagner as his director of social services. Wagner said the couple considered California's anti-gay marriage law before accepting the appointment.

At the time of the move, California had in force the anti-same-sex marriage Proposition 22, which voters passed in 2000. While California's anti-same-sex marriage law was a concern for both men, the couple was also aware of, and hopeful for, legal efforts to repeal the discriminatory law.

That occurred about a year after Wagner began working for the state, when the California State Supreme Court repealed Prop 22 on May 15, 2008.

It was the presence or absence of laws that determined areas safe for living and working for minorities and inter-racial couples until the late 1960s when such discrimination became the nation's creed. For gays and lesbians, single or partnered, every career choice factors in a national map of states, bible belts and Mormon corridors where laws, or their absence, allow for the firing of someone because of their sexual orientation. 

For someone who is gay, those areas reflect potentially hostile work environments and societies encouraging or tolerant of bias.  Businesses which headquarter within those regions often are ruled out by qualified gay and lesbian professionals.

For legally married same-sex couples, the map of the United States is more akin to that of the pilgrims when it comes to safe and inviting places to live.

"We definitely considered the openness of the society where we would be relocating," said Wagner. "There were only a limited number of places," supportive of marriage equality for same-sex couples.

Wagner said the couple looked at Sacramento and California's anti-discrimination laws and determined they outweighed the anti-marriage law of the state.

"We also were hopeful of some of the efforts that were occurring at that time," said Wagner, adding the couple revisited the issue following the passage of Prop 8 last November.

"I think definitely after the passage of Prop 8 we wrestled with the question of whether or not we made the right decision," he said.
 
Prop 8, which defines marriage as a union between one man and one woman, was upheld by the state Supreme Court in May. But the court also upheld the estimated 18,000 same-sex marriages that took place between June 16 and November 4 last year.
 
While Wagner and Keyes felt the anti-gay sentiment of Prop 8's passage, the men were not immediately concerned about their legal status as a married couple.
 
"It was more a question of trying to figure out what our status was," Wagner said. "What it meant for our status after the passage of Prop 8." Wagner said he and Keyes eventually discovered "there was no definitive status, which is why I applaud the governor for signing the bill."
 
Why there was concern
 
When asked whether or not he spoke to the governor about the legislation or if Schwarzenegger was aware of his situation, Wagner told CPR that he could not comment, saying any conversation with the governor is private. But Wagner, who holds master's degrees from Harvard and Georgetown, did say he believes there to be "a general knowledge" of his marriage and status and that he has been open about his life throughout his career.

Before Schwarzenegger made the decision to sign the bill, which goes into effect January 1, Wagner and Keyes had to do what many out of state LGBT couples were doing to regain some of the protections afforded them as married couples.
"We had to re-examine the impact [of Prop 8] on our health insurance and we had to file domestic partnership."

"There were many valid reasons for concern," Wagner said.

Both Wagner and Keyes were prohibited from protecting their marital status from the whim of California voters and created by the California State Supreme Court's ruling because marital laws in California prohibit re-marrying of couples married in other states. But even at the height of the Prop 8 fight, Wagner said it never occurred to the couple that the marital status awarded them in Massachusetts in 2004 could be taken away by California voters in 2008.

"During that time we thought that our marriage was valid and legal. We didn't think there was a reason to remarry," Wagner said.

Wagner said both he and Keyes were surprised to learn the court had made no ruling on what Prop 8 meant to their relationship.

"I was very pleased with the signing of the Leno bill and I think the governor showed extraordinary courage," Wagner said. "There were a lot of marriages, not just mine, that were in legal limbo, and I'm truly grateful that the governor recognized the vacuum created by the court's ruling. I was very pleased with the governor's decision; it's another reason for me to be proud of being a part of this administration."

Wagner was bipartisan in his support, singling out the bill's author, Leno, with Schwarzenegger for "exercising strong leadership."

Schwarzenegger had been under tremendous pressure to veto SB 54 by conservative groups like California Family Council, led by Ron Prentice, executive director of protectmarriage.com, the Yes on 8 campaign. CFC's action request e-mail asked members to contact Schwarzenegger's office.

"The people of California are sovereign, and the language of Proposition 8 is clear regarding the people's intent," the alert stated. "However, California's current Legislature will continue to attempt to weaken the laws set forth by the people. Californians are better informed to these antics and will ultimately press Governor Schwarzenegger for his veto of SB 54."

Future marriages

The legislation affirms that same-sex couples who married outside California after Prop 8 went into effect on November 5, 2008, or plan to do so in the future, must receive the same rights, protections, benefits, obligations and responsibilities afforded to opposite-sex spouses, with the sole exception of the designation of "marriage."

Leno also was pleased with Schwarzenegger's decision.

"I applaud the governor for ending the legal limbo in which many married same-sex couples are finding themselves," he said. "When California offered marriage licenses to same-sex couples in 2008, spouses who were already married in another state or country were prohibited from re-marrying in California. Now those couples and their families will receive the rights and protections under the law to which they are entitled. This legislation ensures that same-sex couples are protected by existing California law that recognizes all marriages equally, regardless of where they are performed."

Schwarzenegger's signing message referred to the legislation as necessary legal clarification that "honors" the voters' passage of Prop 8.

"Following the passage of Proposition 8, there has been some uncertainty as to how California should treat same-sex couples that married out-of-state while same-sex marriage was legal in California," the governor stated. "Consistent with the California Supreme Court's decision that upheld the validity of those in-state marriages entered into prior to the passage of Proposition 8, Senate Bill 54 clarifies that California must also recognize as married couples that legally married in another state during the same period of time in which same-sex marriage was legal in California."

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Dan Aiello is the Sacramento reporter for the California Progress Report