California Gay Marriage

Pink news is reporting on the latest twist in the Proposition 8/gay marriage row in California. It reports that The National Centre for Lesbian Rights (NCLR), the American Civil Liberties Union (ACLU), and Lambda Legal have filed a reply brief in the California Supreme Court, the next step in the lawsuit seeking to overturn Prop 8. According to Pink News 'The new brief backs state Attorney General Jerry Brown's position that certain fundamental rights, including the right to marry, are inalienable, cannot be put up for a popular vote and cannot be applied to invalidate existing marriages.' To my mind that could in theory be upheld and the Proposition 8 ban also upheld with marriage being a right, but marriage being an activity which can only be between a man and a woman. A position, incidentally, which Obama has stated so anyone hoping for help from the new administration will be disappointed. More generally, students will find the Lambda docket history of interest and use. It can be viewed here.

There has also been speculation as to whether Proposition 8 will now apply to existing marriages. When Proposition 8 passed I stated that it was my view it would invalidate existing rights. For me, that was what made Proposition 8 even worse than some opponents had been fearing. Whilst this still has to unravel it seems clear that hospitals which grant certain rights to someone "married" can not do so to same sex-sex couples if the term "married" has been changed constitutionally to exclude same sex couples.

The US based website Findlaw earlier this month predicted that US marriage would be the number one legal issue and in California that seems likely to come true. I hope Proposition 8 is overturned but I'm not optimistic. The LGBTQQI community(ies) also need to continue a dialogue about what they want - civil unions/partnerships and/or marriage and what those things mean.

In English law we failed to have that full dialogue and I think we are the poorer for it. Whilst marriage might be a big issue in the USA, the UK will see the new Equality Bill brought before Parliament which I hope will lead to further discussion about what equality is and (shock horror) whether it is intrinsically a good thing.

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