Friday, February 06, 2004

Gay marriage?
Here's a story that, I'm surprised to see, neither the BBC or CNN have covered prominently. The Supreme Court of Massachusetts has ruled that gay and lesbian couples are entitled to full, equal marriage rights. In doing so, it has explictly found that options falling short of marriage -- such as civil unions -- are unconstitutional. Why? Because these "would have the effect of maintaining and fostering a stigma of exclusion that the Constitution prohibits." The ruling means that, starting on May 17, same-sex couples will be able to marry in Massachusetts, making it the only state in the US to allow gay marriage.

Needless to say, George Bush has reacted angrily and stated that "marriage is a sacred institution between a man and a woman. If activist judges insist on redefining marriage by court order, the only alternative will be the constitutional process." In other words, the Constitution may have to be amended to prohibit gay marriage.

I'm no expert in US constitutional law, or the Constitution of Massachusetts for that matter, so I'm not about to make any technical pronouncements. But it does seem clear that, in liberal democracies, especially those that have justiciable bill of rights, gay rights are steadily, and inexorably, gaining ground. Canada has now recognised the legality of gay marriage (pursuant to a court order), civil unions have been mooted in the UK, and its only a matter of time before other European countries, and South Africa, follow suit.

I'm not sure if Bush's threat to change the US Constitution is simply populist grandstanding before the elections, but it does strike me as a particularly ill-advised idea. Firstly, there are simply the practical difficulties. By the most common route, the US Constitution can only be amended by 2/3 of both houses of the legislature, and 3/4 of the state legislatures. This would obviously be an exceptionally tortuous process that might well not result in success. Secondly, if the Constitution was amended, the odds are that the provision would simply become anachronistic -- as other jurisdictions move towards gay marriage -- and, frankly, embarrassing for the US and many of its more enlightened citizens. It would, in effect, be like Bowers v Hardwick -- the US Supreme Court decision that allowed for criminalisation of sodomy, contrary to international trends, and which was only recently overturned by Lawrence v Texas -- but worse, because it would be far more intractable.

Better, by far, simply to allow state legislatures, and state courts, to legalise gay marriage organically. The odds are that this would only occur in states where most people support the move. In states where people are against it, neither the courts nor the legislatures are likely to act. Certainly, the US Supreme Court isn't going to touch this one with a barge-pole for some time.

The judgment, or rather, the opinion of the Supreme Court of Massachusetts, is available here.

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