Every summer I seem to write about gay marriage in California. At least, I did in 2008, then in 2009, and now I’m at it again. Because Judge Walker of the US District Court has ruled, in Perry v Schwarzenegger, that Proposition 8 breaches the “due process” and “equal protection” clauses of the US Constitution.
This all started with the California Supreme Court ruling that gay people have a right to marry under the Californian constitution. Then opponents of gay marriage successfully proposed an amendment to the constitution – Proposition 8 – so as to limit marriage to straight couples only. That was voted through, and survived challenge in the same Californian Supreme Court.
This latest challenge, though, is taking place in the Federal courts, and relies on the United States Constitution. Orin Kerr, Dale Carpenter and Eugene Volokh have been provided excellent commentary at the Volokh Conspiracy, plus there’s coverage at the American Constitution Society’s blog.
I’m in favour of gay marriage here in the UK. No doubt if I were an American I’d be on the liberal side of this particular culture (or legal) war. As I wrote last year, though, I worry about the way this debate seems entirely judicialised in the United States, with people’s rights depending not on who runs Congress or which candidate wins an election, but on how judges think.
It’s true that the law in the UK isn’t hugely different now from the position in America as far as equal treatment is concerned: it’s possible to challenge the ban on gay marriage on the basis that it discriminates in relation to the right to marry, and so breaches the article 14 Convention right combined with the article 12 right to marry or the article 8 right to respect for private life. Such a challenge would be unlikely to succeed, though, as the European Court of Human Rights has ruled that states do not have to formally recognise same-sex partnerships. And in the UK we have no such thing as the “due process” clause, which effectively requires the state to justify any policy affecting fundamental rights by proving a legitimate or compelling interest in doing so – which seems to me pretty near to a merits review.
Those who want a written constitution in the UK – the Nick Cleggs of this world – would like us to go this way. I may not agree with Proposition 8, but I’d rather have Parliamentary democracy over kritocracy or kritachy any day. No wonder lawyers are so powerful, so idolised, and so hated in America, if political change depends on their agreement more than anyone else’s.