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Posted by on Mar 1, 2013 in In the news, Law | 2 comments

Same-sex marriage case approaches US Supreme Court hearing

In an important test of the legal and cultural acceptance of same-sex marriage, the current ban on equal mariage recognition in California is now approaching a hearing in the US Supreme Court. This will test the validity of Proposition 8 – the referendum proposition that succeeded in California back in November 2008, declaring that  “Only marriage between a man and a woman is valid or recognized in California.” This referendum overturned the outcome of a California court case based upon the state constitution.

It appears that the critical issue for the US Supreme Court  will be whether Proposition 8 breaches the Fourteenth Amendment to the US Constitution, whose key words for present purposes are “nor shall any State … deny to any person within its jurisdiction the equal protection of the laws.” As is well known, this provision was essentially to support the abolition of slavery (expressly covered in the Thirteenth Amendment) and to prevent African Americans from being treated by the law as second class citizens (for example with harsher punishments than whites for the same crimes, or with race-based impediments to suing, giving evidence, etc.). There has long been controversy over what discriminations other than racial ones are covered by this clause. Furthermore, it might be asked whether its purpose extends beyond such things as having a lesser protection from crimes and civil wrongs, and having lesser procedural protections when charged with crimes or sued in the courts.

The case will have immense social significance that will reverberate far beyond the United States, especially if Proposition 8 ultimately fails at the highest level of the judiciary. Within the US, the case will also have great technical legal importance in testing the limits of the Equal Protection Clause. Past cases have treated the clause creatively and expansively, so will the current Supreme Court try to scale that back? Will it be inclined to read the clause in a more narrow and technical way to avoid creating a precedent for same-sex marriage across the US?

For those who are not long-time followers of this blog, I favour the provision of access to same-sex marriage; nonetheless, there are tricky legal issues here. I don’t doubt for a moment that some respectable legal arguments can be put that the words of the Equal Protection Clause were intended to have a fairly narrow meaning. The problem for such arguments, from a strictly legal viewpoint, is that the American courts have a past history of reading the Constitution in rather expansive ways – including, as I mentioned, the Fourteenth Amendment itself. It would seem invidious if this became the case that adopted an unusually narrow approach, by US standards, to constitutional interpretation.

Importantly, the Obama administration has filed an amicus curiae brief, seeking that Proposition 8 be struck down on equal protection grounds. While the argument in the brief is supposedly restricted to circumstances in California, it is difficult to see how the case could succeed without affecting all American states that fail to provide for same-sex marriage. At the least, it would apply to all that positively forbid it, although it’s presently beyond me as to how that could be a legally relevant distinction.

It hasn’t escaped me that a provision such as Proposition 8 may be vulnerable, in addition, on First Amendment grounds relating to freedom of religion, as it is not obvious how a provision such as “Only marriage between a man and a woman is valid or recognized in California” serves any plausible secular purpose. It appears to be an imposition of religious norms of conduct, although I predict that this aspect will not loom large in the hearing or the opinion of the court. If the Supreme Court is unwilling to strike down Proposition 8 on equal protection grounds, I expect that it will go to great lengths to find some kind of secular purpose, however weak or far-fetched.

Edit: Although it’s not material to the legal arguments, I apologise for a misunderstanding that is reflected in the wording in one or two places in the post above.  Contrary to the impression I had at the time I wrote the post, the US Supreme Court is actually hearing an appeal against a ruling in the courts below that declares Proposition 8 to be unconstitutional. So the US Supreme Court is not being asked to strike down Proposition 8 but to uphold it in the face of the ruling so far. That doesn’t change the nature of the substantive legal arguments, but it is best to get these procedural things right and to avoid misleading others about them.

  • An Ardent Skeptic

    What was very disconcerting to me about the passage of Prop 8 was that it was a amendment to the state constitution. And, unfortunately, amendments to the CA state constitution do not require a super majority to pass. I don’t think we should be amending constitutions without requiring that the amendment require a super majority for passage. It’s far too easy to get a simple majority, which makes it far too easy to out vote minorities and trample on their rights. That’s precisely what we did when we passed Prop 8. If a super majority had been required, Prop 8 would not have passed.

    So while we’re trying to get a supreme court ruling to overturn the passage of Prop 8, perhaps Californians should be fixing the problem that allowed it’s passage to begin with.

  • Malati

    What is super majority? Is it better to be oppressed by a few people in black robes than by a majority of people in the state?

    As Russell has pointed out the 13th Amendment was written specifically for the abolition of slavery.

    If I remember correctly, Justice Scalia recently said that public policies regarding morals of the society can rightly be determined through the congress. I take it to mean through representative democracy — people can let their politicians speak for them.

    In my opinion, gays and lesbians and heterosexuals have the same right. Gays can marry a woman. A lesbian can marry a man. A man can marry a woman and vice-versa.

    When a gay activist in Tasmania, Aus. made a case about descrimination of gays because they can not marry, the Federal court judge Jayne Jagot ruled that there was no discrimination. Her conclusion at the end resonated with U.S. Justice Scalia’s opinion, mentioned above.

    Judge Jagot said redress for the person who put forward the challenge, if he or others wish to marry a person of the same sex rather than the opposite sex, is to be found in the political and not the legal arena, by amendment of the definition of ‘marriage’.

    “In her ruling, Jagot found the federal Marriage Act which states marriage is “the union of a man and a woman to the exclusion of all others” was not discriminatory as it treated both genders equally with neither gay men nor lesbians able to marry their same-sex partners.

    “It is clear that the facts are legally incapable of satisfying the statutory tests of discrimination on the grounds of sex or marital status,” she wrote.

    “There cannot be discrimination by reason of the sex of a person because in all cases the treatment of the person of the opposite sex is the same.

    “The statutory regime makes plain that the only redress for Mr Margan, if he or others wish to marry a person of the same rather than the opposite sex, is to be found in the political and not the legal arena, by amendment of the definition of ‘marriage’.”