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Gay marriage in court

interior-gaymarriageThis article was published in the Sunday Herald on August 8, 2010.

America’s gay community is celebrating, after a judge in California ruled that the state’s ban on same sex marriages is unconstitutional. Justice Vaughn Walker’s verdict will be appealed all the way to the Supreme Court. It does not immediately grant gay couples the right to wed. But in the wider culture war, it is a battle won.

The case first attracted attention because its prosecutors, Theodore B. Olson and David Boies, were on opposite sides during the hearings that decided the Bush v Gore election. This formidable alliance of Republican and Democratic trial lawyers is one indication that debate cuts across party lines. Together, they hope to secure a landmark civil rights ruling to go into the books alongside Loving v Virginia, which struck down laws preventing inter-racial marriages in 1967.

In terms of its ability to polarise opinion, the case appears to be more like Roe v Wade, which formally guaranteed a woman’s right to have an abortion, but also unified conservative opposition. “Every time a court does this, we grow exponentially,” claimed Brian Brown of the National Organisation for Marriage.

Judge Walker ruled that the defence did not have a sound factual basis for its arguments. He found no evidence to suggest that permitting gay marriage has a negative impact on heterosexual marriages, nor any proof that gay couples make bad parents. He also laid out the ways in which marital status affects basic civil rights, from citizenship to taxes, inheritance rules to hospital visitation.

“Animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women… is not a proper basis on which to legislate,” he concluded.

Conservatives wasted no time in attacking the verdict. Former House Speaker Newt Gingrich called it “an outrageous disrespect for our Constitution”. Focus on the Family released a statement lamenting that “a single federal judge can nullify the votes of more than seven million California voters, binding Supreme Court precedent, and several millennia-worth of evidence that children need both a mum and a dad.”


Others concentrated on Walker’s own sexual orientation. The San Francisco has published several articles stating that the judge is himself gay, describing it as “an open secret” in the city. The American Family Association argued that it would be impossible for him to remain impartial and suggested he withdraw from the case. Walker is nominally a conservative, nominated by Reagan, appointed by Bush and at one time vehemently criticised by gay rights advocates for litigating against the name “gay Olympics” being used by a sporting event.

President Obama has staked out a typically cautious position, calling the California ban “abhorrent” while indicating that he supports civil unions, rather than same sex marriage. Some Republicans hope that it will be an effective social wedge issue in the upcoming elections, as abortion has been in the past.

Supporters of gay marriage remain divided over the best way to advance their cause. At the outset, many viewed the Olson-Boies lawsuit as an unnecessarily risky strategy. “The Supreme Court typically does not get too far ahead of either public opinion or the law in the majority of states,” warned a statement issued on behalf of several leading gay rights groups. “We lost the right to marry in California at the ballot box. That’s where we need to win it back.”

Most states have statutes prohibiting gay marriage. Only Connecticut, Iowa, Massachusetts, New Hampshire and Vermont currently grant marriage licences to homosexual couples. Because California’s ban passed with 52% of the vote, its supporters argue that Judge Walker’s ruling is inconsistent with the people’s will.

Nonetheless, there are signs of a gradual shift in public opinion. Iowa is traditionally a conservative state, but an alliance of the liberal left and libertarian right has kept a constitutional amendment to ban same sex marriage off the senate floor. Former Vice President Dick Cheney, whose daughter Mary is lesbian, with a wife and kids, has said that “people ought to be free to enter into any kind of union they wish”.

Last year, a Pew poll found that 58% per cent of young American voters support gay marriage, compared to 22% of senior citizens. For some advocates of marriage equality, this generational divide holds out much more hope than the case on its way to the Supreme Court.

There, the decision will almost certainly come down to Justice Anthony Kennedy, who holds the swing vote between the court’s two ideological wings. Walker’s ruling was clearly written with Kennedy in mind, citing his majority opinion in Lawrence v Texas, which struck down anti-sodomy laws across the USA in 2003.

Whatever the court eventually decides – the case is unlikely to be heard until late next year – the broader question is whether a country that considered gay sex a crime less than a decade ago is ready to embrace gay marriage.