Less than a decade ago, it was illegal in several states for gay adults to have sex in the privacy of their own homes. Anti-sodomy laws were supported by supreme court precedent, until the nation’s highest court reversed itself in Lawrence v Texas. Just seven years later, the court may rule on whether states must recognise gay unions as civil marriages.
Judge Vaughn R Walker set this in motion by holding that Proposition 8, the California ballot initiative that ended the state’s judicially imposed experiment with gay marriage, violated the US constitution. Walker’s decision is sure to be appealed, probably all the way to the supreme court. It is perhaps the biggest boost supporters of gay marriage have received in the last seven years.
The gay marriage debate has changed a great deal since it first emerged on the scene in the 1990s, when Hawaii’s state supreme court issued its own Walker-like ruling. Polls showed nearly 70% of the American people opposed gay marriage. Roughly that many voted against it when Hawaii’s overwhelmingly Democratic electorate passed a constitutional amendment to reverse their supreme court’s judgment on this issue.
As the Hawaii vote showed, opposition to gay marriage was bipartisan. When Congress passed the Defence of Marriage Act in 1996, it won the vote of arch liberal Senator Paul Wellstone (Democrat, Minnesota) as well as ultraconservative Senator Jesse Helms (Republican, North Carolina). The final tally was 342 to 67 in the house and 85 to 14 in the Senate. Democratic President Bill Clinton signed it into law.
Today, public opposition to same-sex marriage is generally in the low 50s. Legislation like the Defence of Marriage Act would never pass by such lopsided margins and a Republican-controlled Senate failed to muster plurality support for a federal marriage amendment. President Barack Obama will likely be the last Democratic nominee even nominally to oppose gay marriage.
But after undergoing this shift between 1993 and 2003, the gay marriage debate has been stuck. Nationally, public opinion hasn’t budged. A few more states have recognised gay marriage: Connecticut, Iowa, New Hampshire and Vermont have joined Massachusetts in granting same-sex matrimony, as has the District of Columbia. Only the last three have approved gay marriage without judicial intervention, however.
It is also noteworthy that gay marriage has remained legal in these states only insofar as its supporters have been able to keep it off the ballot. Over 30 states have voted against gay marriage, some by amending their state constitutions. None have voted in favour. Maine and California both terminated gay marriage once it was already in effect, despite early polling suggesting gay rights advocates might win.
That’s what makes Walker’s decision a major step forward for supporters of gay marriage. While it is widely assumed that the supreme court will reverse Walker on appeal, that is hardly a foregone conclusion. The key vote belongs to Justice Anthony Kennedy. Kennedy is a Republican appointed by President Ronald Reagan. But he was also the author of two major gay rights decisions: Romer v Evans and, yes, Lawrence v Texas. The logic of both of these rulings is highly compatible with Walker’s rationale for striking down Proposition 8.
Unless the supreme court were to find a way narrowly to uphold Walker without settling the issue nationally – no easy feat – it would pave the way for the country’s highest court to assert a constitutional right to same-sex marriage. No longer would gay marriage be confined largely to New England states that don’t have easy processes for bringing about a popular referendum on the issue.
What would happen next is anyone’s guess. Sometimes, when the courts are slightly ahead of popular opinion, there is initial grumbling, but the supreme court is able to settle the question. But what if a national version of Perry v Schwarzenegger is way ahead of popular opinion? Roe v Wade did nothing to solve the national controversy over abortion. In fact, Roe arguably made that debate even more polarised by avoiding the compromises involved in democratic decision-making.
Ruth Bader Ginsburg once argued that Roe “halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue”. Things have been moving, however slowly, in the direction of gay marriage. Will a supreme court decision on the issue accelerate that movement or reverse it?
Justices like Ginsburg will help decide.
Originally reported by the Guardian. Read the original article here.
Like many Americans, I am completely disinterested in other “adults” sexual behavior. If two people of the same sex want to love each other I DON’T CARE! I would venture to say its not the average Joe blow homosexual that is obsessed with redefining marriage…it’s the activist extremists! Homosexuality cannot be merged with the traditionally recognized institution of marriage between one man and one woman. Same sex relationships could be called whatever they want. Then let both have equal benefits. Minimal discrimination to either side!
To communicate or debate, one has to decide what their issue is with prop 8, gay marriage or judicial activism?. My issue has nothing to do whether or not I am in favor or against gay marriage.
According to judge walker the current “credible” motivation for banning gays and lesbians from marrying is a desire to mark them as second-class citizens. Well I say, then why be married? Why try to change the ancient traditional foundation that exists? Do they really think a piece of paper will change anything? Well from experience I found that kind of ownership of another person just makes life more complicated. Well as a divorced agnostic, its easy for me to feel that way emotionally! Also, you never herd me complain with my choice to become a minority as a single dad back in the 1990s with custody of my kids. I was discriminated across the board compared to single moms, so I have some personal experience with discrimination. And don’t tell me this is equal to abolition of slavery, or women overcoming patriarchy!
Shouldn’t we all be up in arms working together over something sooooo much more important? Like decades of sloppy capitalism, and all its trickle down effects that has our country in such a terrible economic mess? We need to wake up collectively and look what’s happening to our country?…look where we are at? Shouldn’t there be hundreds of other more relevant issues to get this country up in arms? Yeah, I know I am changing the subject……Hello!
Now if the issue for you is solely gay marriage, weather for or against it, then you are talking about your own life/emotions, and regardless if this decision is in your favor or not, that blinds you. That’s what the populous does! Again, wake up and look what’s happening to our country….look where we are!
I disagree with the power abuse used to implement amendment of prop 8, because of the extort tactics employed, not because of gay marriage in itself. If they want to be as miserable as hetero couples its fine with me! Just as Obama, I do not endorse gay marriage, but have no problem with benefits. There is an issue here bigger than, beliefs, religion, homophobia, sin, or gay marriage, all of that is just the stage!! My interest here is what is going on behind this gay smokescreen? Perhaps it’s the constitution being manipulated to fit a judicial agenda? for people in the populous like themselves? Well, constitutional interpretation or reconstructing the constitution certainly can not be left to an activist judge, and should not be left to the judiciary alone. They should require input from the citizens.
Why is Obama against gay marriage? How can a president sit back and concur with Judicial inability to recognize its limitations as a political entity undermining democratic favor?.
Society cannot separate due to physical traits. It does separate based on things that society deems immoral or dangerous. If this is discrimination, which side or who defines morality? Each side has a different definition? To communicate or debate our words need to have the same meaning or were not speaking the same language and we get nowhere, for example look at the abortion debate.
How far can the supreme court break down the majority of citizens conventional ideas of morality? Where and how could they find an acceptable limit that does not discriminate against anyone’s morals? Will the Supreme court decide for society the definition of correct and moral behavior for all mindsets? If so, are we still a constitutional representative democracy? If not, and we are to “evolve” into something more modern, meaning we are beyond those old age parameters, should that be up to the Supreme court to decide?
I would say every time judicial supremacy replaces constitutional supremacy It goes against our best ideals constitutionally, that is regarding the intended understanding of the values outlined in our founding documents.
Judge Walker says: “the ruling struck down Proposition 8 as a violation of federal constitutional guarantees of equal protection and due process”
So if it’s unconstitutional to prohibit same sex marriage…. Using that same ideology is it even more unconstitutional to force this on all of society? Now, if “moral disapproval” violates constitutional rights as Judge walker stated, then is he contradicting himself? Constitutional politics is known to, and accepted to use, persuasion to initiate change. This Judge has just used political coercion. He has personally, through the court, used the morality of rights from a minority, to displace the morality of consent with all of California. Will the supreme court follow suit?
Every time we allow judicial review to impose judicial supremacy, to replace constitutional supremacy, It goes against our best ideals constitutionally, and
we alter the constitution without public acceptance and or awareness. This supremacy is a slippery slope, presently the subject matter is insignificant compared to what it will become down the line, leading to more problems that are significant, to the point where someday we may end up a dictatorship. California has already voted twice that marriage is the union of a man and a woman and approved Prop 8. 30 states have voted the same, over 60 million Americans. Are we a constitutional representative democracy? If we no longer accept the current benchmark of our citizens individual voting preferences, it goes against our best ideals constitutionally. If I remember correctly the Constitution belongs to the people!
I project that if the supreme court (through what would have to be a narrow victory) forces this down society’s throat, with all the societal changes that would follow, for example, all children being taught that homosexuality is a healthy life choice……the complete disgust for homosexuality by the heterosexual majority in this country will not only persist, but increase, as it is a natural response for them. That could end up worse for the same-sex marriage movement , which could lead to a constitutional amendment that would eliminate same-sex marriage in all states. I wonder if the Supreme Court will avoid making a decision and leave it to states?
Lets see what happens!
Jeff Chiacchieri