FacebookTwitterGoogle+RedditEmail

Marriage Wars

by BINOY KAMPMARK

It is billed as one of the great battles of legal history. In truth, the battle over Proposition 8’s legality in the highest court in the United States might well be a fizzer, a side-step rather than a full trot.  When California’s electors voted for Proposition 8 in 2008, it went against the legal reasoning of the California Supreme Court which had proclaimed that the state’s constitution guaranteed the right to gay marriage.  18,000 same sex couples who had taken advantage of the legal reasoning of the court find themselves in legal limbo. The lawyers find themselves very busy indeed.

Proposition 8 itself came up against a now retired Judge Vaughn R. Walker, who was subsequently attacked by its sponsors.  His own sexual orientation was apparently a disentitling point for opponents, despite being a Republican appointee and firm libertarian.  In any case, his decision opened the legal route over a battle that has captivated activists on both sides of the marriage fence.

Certainly, the celebrity set were there to pronounce upon the legal deliberations of the Supreme Court, which are in full swing this week.  Actor-director Rob Reiner spoke of his anticipation at the ruling in June “and believe[s] that the Supreme Court will come down on the side of fairness, dignity and equality” (LA Times, Mar 26).  That all said, grand words do not necessarily produce grand results.

A more sober appraisal was offered by Politico’s Josh Gerstein (Mar 26).  “For all the toasting in Washington and excitement among gay rights groups about the historic oral arguments this week, there’s still a chance their set of cases could culminate in loss.”  This might well happen not merely on Prop 8 itself but the federal Defence of Marriage Act, which enshrines heterosexual union as the cornerstone of marriage.

The Supreme Court justices may well choose to veer away from a clear decision on whether the Constitution reveals any core right for gay marriage, whatever the vox populi might say about the matter.  This is understandable – US courts exercise enormous power, sometimes to the detriment of public views as expressed via ballot.  As the former California Chief Justice Ronald M. George explained, “the people have a right to amend their Constitution.”

In the meantime, there are only whisperings, clues and the occasional broadside about where the case will go.  Justice Anthony Kennedy, for one, sounded off about the “immediate legal injury” inflicted by Prop. 8 on the children of same-sex unions.  Having himself drafted the 2003 decision that prevented states from criminalising gay sex acts, he was all ears to the problems of prejudice.  “They want their parents to have full recognition and full status.  The voice of those children is important in this case, don’t you think?”

Notwithstanding the stance, the Justice reserved a few harsh words for his legal colleagues lower down the judicial chain.  “I just wonder if the case was properly granted.”  Bets are being hedged, even if punters are willing to splash out.  “There’s zero possibility [of a loss],” suggested University of Chicago law professor Geoffrey Stone.  The tea leaves can be found not merely in the majority verdict against the sodomy laws in 2003, but Romer v Evans (1996), a decision which still reverberates in terms of what states can or can’t do in imposing disabilities on sections of the populace.  The amendment to the Colorado state constitution preventing any city, town or country in state recognising gay and lesbian individual individuals a protected class was struck down.  “Homosexuals,” reasoned Justice Kennedy in Romer, “are forbidden the safeguards that others enjoy or may seek without constraint.”

The road to legal wisdom can still be a dull one.  The current case is interesting for the procedural wonks keen on seeing how laws of standing are decided.  “Have we ever granted standing to proponents of ballot initiatives?” queried Justice Ginsberg.  The answer that came from Charles J. Cooper on behalf of the petitioners was a clear no.  Instead, Cooper argued that, precisely because the state of California itself would have standing, its officials might empower a “very clear and identifiable group of citizens” with that legal basis.

Former Republican US Solicitor General Theodore Olson argued that Proposition 8 “was stigmatising a class of Californians based upon their status and labelling their most cherished relationships as second-rate, different, unequal and not OK.”  The ever rock-solid conservative Justice Antonin Scalia had little truck with that.  “When did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the 14th Amendment was adopted?”  The writing of his decision is already on the wall.

The vistas open by a strong majority decision of the court will be considerable.  But the intricacies of American constitutional law may allow the court to exit without a clear stance on whether US law allows for gay marriage.  The default position in many decisions in history has been to leave the matter to the states to decide.  California’s ban, in that case, might be reinstated.  A narrow right to gay marriage might also be “found” specific to some states with constitutions such as California’s, or the bench might go the whole hog and find a right across the country.  All of this, even as the popularity for gay marriage has reached unprecedented levels in the U.S.

Not to be deterred, the optimists will find, even in any loss, hope.  “Even if you lose the case, and I think that’s very unlikely, you would say that the case has been a success because it’s changed public opinion so dramatically,” intones former advisor to Bill Clinton, Richard Socarides.  That may well be – in time.  The law will simply have to limp and lag.

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne.  Email: bkampmark@gmail.com

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

More articles by:
Weekend Edition
June 24, 2016
Friday - Sunday
John Pilger
A Blow for Peace and Democracy: Why the British Said No to Europe
Pepe Escobar
Goodbye to All That: Why the UK Left the EU
Michael Hudson
Revolts of the Debtors: From Socrates to Ibn Khaldun
Andrew Levine
Summer Spectaculars: Prelude to a Tea Party?
Kshama Sawant
Beyond Bernie: Still Not With Her
Mike Whitney
¡Basta Ya, Brussels! British Voters Reject EU Corporate Slavestate
Tariq Ali
Panic in the House: Brexit as Revolt Against the Political Establishment
Paul Street
Miranda, Obama, and Hamilton: an Orwellian Ménage à Trois for the Neoliberal Age
Ellen Brown
The War on Weed is Winding Down, But Will Monsanto Emerge the Winner?
Gary Leupp
Why God Created the Two-Party System
Conn Hallinan
Brexit Vote: a Very British Affair (But Spain May Rock the Continent)
Ruth Fowler
England, My England
Jeffrey St. Clair
Lines Written on the Occasion of Bernie Sanders’ Announcement of His Intention to Vote for Hillary Clinton
Norman Pollack
Fissures in World Capitalism: the British Vote
Paul Bentley
Mercenary Logic: 12 Dead in Kabul
Binoy Kampmark
Parting Is Such Sweet Joy: Brexit Prevails!
Elliot Sperber
Show Me Your Papers: Supreme Court Legalizes Arbitrary Searches
Jan Oberg
The Brexit Shock: Now It’s All Up in the Air
Nauman Sadiq
Brexit: a Victory for Britain’s Working Class
Brian Cloughley
Murder by Drone: Killing Taxi Drivers in the Name of Freedom
Ramzy Baroud
How Israel Uses Water as a Weapon of War
Brad Evans – Henry Giroux
The Violence of Forgetting
Ben Debney
Homophobia and the Conservative Victim Complex
Margaret Kimberley
The Orlando Massacre and US Foreign Policy
David Rosen
Americans Work Too Long for Too Little
Murray Dobbin
Do We Really Want a War With Russia?
Kathy Kelly
What’s at Stake
Louis Yako
I Have Nothing “Newsworthy” to Report this Week
Pete Dolack
Killing Ourselves With Technology
David Krieger
The 10 Worst Acts of the Nuclear Age
Lamont Lilly
Movement for Black Lives Yields New Targets of the State
Martha Rosenberg
A Hated Industry Fights Back
Robert Fantina
Hillary, Gloria and Jill: a Brief Look at Alternatives
Chris Doyle
No Fireworks: Bicentennial Summer and the Decline of American Ideals
Michael Doliner
Beyond Dangerous: the Politics of Climate
Colin Todhunter
Modi, Monsanto, Bayer and Cargill: Doing Business or Corporate Imperialism?
Steve Church
Brexit: a Rush for the Exits!
Matthew Koehler
Mega Corporation Gobbles Up Slightly Less-Mega Corporation; Chops Jobs to Increase Profits; Blames Enviros. Film at 11.
David Green
Rape Culture, The Hunting Ground, and Amy Goodman: a Critical Perspective
Ed Kemmick
Truckin’: Pro Driver Dispenses Wisdom, Rules of the Road
Alessandro Bianchi
“China Will React if Provoked Again: You Risk the War”: Interview with Andre Vltchek
Christy Rodgers
Biophilia as Extreme Sport
Missy Comley Beattie
At Liberty
Ron Jacobs
Is Everything Permitted?
Cesar Chelala
The Sad Truth About Messi
FacebookTwitterGoogle+RedditEmail