For what it’s worth, the Obama administration has endorsed a UN declaration on human rights, sexual orientation and gender identity, aligning the US with other Western nations in calling for the worldwide decriminalisation of homosexuality.
George W Bush had refused to sign the declaration, not surprisingly: as governor of Texas, he had supported criminalisation, opposing efforts to repeal a state penal law that described ‘homosexual conduct’ as ‘deviate sexual intercourse’ – a class C misdemeanour. Eventually, meting out some poetic as well as actual justice, the Supreme Court struck down that law in Bush’s first term, in the landmark case of Lawrence v Texas (involving the arrest of two adult men engaged in private, consensual sex at home).
The Lawrence decision elicited one of Justice Antonin Scalia’s apoplectic dissents, in which he lamented that that the court ‘has largely signed on to the so-called homosexual agenda… directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct’. Scalia disdained the court’s reference to the right of ‘persons in a homosexual relationship’ to make autonomous decisions about procreation, marriage, and family life (just like heterosexuals), warning that the majority’s reasoning would lead inevitably to a recognition of gay marriage.
No so fast. Equal marriage rights will likely be achieved in the long run (in no small part because younger people across the political spectrum are generally more supportive, or less fearful, of it than their elders); but in the short run, gay marriage advocates can expect to suffer setbacks, like the passage of Proposition 8, a state constitutional ban on gay marriage that California voters enacted by popular referendum last November.
Prop 8 effectively overruled a controversial California Supreme Court decision that had extended marriage rights to gay people. Depressed and angered by the defeat of this earlier decision, gay rights activists quickly filed a lawsuit claiming that Prop 8 itself violated the California constitution, which allows referendums to amend the constitution but not to revise it. Repealing an established right to marry was a constitutional revision, they argued, while anti-marriage advocates argued that Prop 8 was simply an amendment. On such niceties of state law will equal rights to marry in California rest, at least for now.
But underlying the legal semantics are foundational concepts of majority rule and fundamental minority rights. Anti-marriage advocates, represented by Ken Starr (best known for his role as special prosecutor in the Clinton impeachment debacle), asserted that ‘the people do have the raw power’ to define constitutional rights; ‘the people are sovereign’. Pro-marriage advocates countered that popular sovereignty absent equality devolves into populist tyranny, stressing that when the majority repeals a right that it has no need to exercise (like the right of gay people to marry), it is dangerously unrestrained by self-interest.
The California Supreme Court heard these arguments a few weeks ago, on 9 March, and the hearing did not bode well for marriage advocates. The justices appear most likely to uphold Prop 8, while declining to invalidate marriages finalised in the brief period between the court’s recognition of gay marriage and the referendum’s prohibition of it. Gay rights advocates will take little solace in the limited interpretation of Prop 8 adopted by its supporters, to ease the court’s approval of it. Prop 8 simply changed the ‘nomenclature’ of gay unions, Ken Starr argued.
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But, as a practical matter, Starr was not entirely wrong: California and every other state lack the power to grant gay people equal marriage rights, thanks to a 1996 federal law, the Defense of Marriage Act (DOMA), which defines marriage as a union between a man and a woman and denies important federal benefits to gay people whose marriages are sanctioned by their states. What does this mean? My home state of Massachusetts legalised same-sex marriage in 2004 (it was the first state to do so), but gay couples here still remain less than equal, denied social security and healthcare benefits, tax preferences, family leave rights, and citizenship opportunities for foreign born spouses, among other federal entitlements enjoyed by married heterosexuals.
Congress’s foray into regulating marriage was unusual, if not unprecedented, since family law is generally the province of the states. But in the mid-1990s, antipathy toward gay marriage was stronger than concern about traditional allocations of state and federal power. Popular attitudes have changed since then; a majority of Americans now favour some sort of legal recognition for gay unions. Some people (like me) argue that the states should simply issue licenses for equal civil unions to gay and straight couples alike, explicitly deferring questions about sanctification rites to individual religious groups (and rendering moot alleged threats to religious freedom that social conservatives illogically discern in official gay marriages).
But while tolerance for gay unions has significantly increased since the passage of DOMA, Congress is not about to revisit the law in the midst of an economic crisis (that no one seems able to manage); so our separate and unequal marriage system is now being challenged in federal courts, by Gay and Lesbian Advocates and Defenders (GLAD), the organisation that successfully sued to legalise same sex marriage in Massachusetts. GLAD is seeking a ruling striking down DOMA’s definition of marriage, pursuant to constitutional guarantees of equal protection. A victory by GLAD in the lower federal courts might well end up in the Supreme Court; and if he can persuade four of his colleagues to join him in upholding DOMA, Justice Scalia, having darkly predicted the legalisation of gay marriage, might enjoy an opportunity to prove himself wrong. Just this once, equality advocates can hope he was right.
Wendy Kaminer is a lawyer, writer and free speech activist. She is the author most recently of Free for All: Defending Liberty in America Today, published by Beacon Press. (Buy this book from Amazon(UK).) Her forthcoming book is Worst Instincts: Cowardice, Conformity, and the ACLU.
Letter from America.