2013: Marriage Equality Part Two

Matt Baume on the excellent Prop 8 Trial Tracker Blog recently looked back at 2012 through the (US) prism of marriage equality and transformative legal change.  As I look to the year ahead, I can't help thinking that we are simply entering the year of the sequel.  Not just for The Hobbit or Star Trek, but also for the question of marriage.

In the US, the Supreme Court will now seek to resolve the two questions of the Defense of Marriage Act (DOMA), and the ongoing Perry/Proposition 8 legal action.  Both will have significant ramifications for marriage equality across the United States, and the outcome of those cases is far from clear.  Expectations and nerves are equally in evidence.

In the UK, the Christmas period saw the question of same-sex marriage continuing to dominate the media.  The Catholic Church (who you might have thought would have had other things on their minds at Christmas) seem to have a pre-occupation with homosexuality which verges on the obsessive.  First, Britain's most senior Catholic, the Archbishop of Westminster, took another brave step into irrelevance, using his Christmas Eve mass to declare the government had no mandate for legal change (likening David Cameron to the Nazis and Communists), described the plans for legal reform as a 'shambles', and also declared that most people were against the reforms.

Now now, I hear you say, you're just singling out one man and he's not representative of the whole Catholic Church (even though he leads it in England).  Well, it seems the Archbishop of Birmingham (for it is he) agrees with you.  Not wanting the Catholic Church to be painted as led by an unrepresentative bigot, he made sure that such bigoted views are representative of the Church as a whole.  He decided to spend Christmas writing a letter to churches and chapels in his diocese (and to be read to worshippers on New Years Eve), telling them:

'Government policy cannot foresee the full consequences, for the children involved or for wider society, of being brought up by two mothers without a father’s influence or by two fathers without a mother’s influence. 'We first learn about diversity and acquire a respect for difference through the complementarity of our parents.' He describes the 'complementary love of father and mother' as a 'precious gift that we should wish for every child'.

So, the Government do look likely to have a bit more of a hoo-ha over their same-sex marriage plans.  Although the Archbishop of Westminster is wrong in describing the plans as 'shambolic', it would be fair to describe them as not yet fully thought through.  The Government do need resolve the issues of consummation and the issue of the status of Civil Partnerships far better than the sticking plasters on offer in their current formal response.

Perhaps feeling left out, High Court Judge Sir Paul Coleridge decided to embroil the judiciary in the mess of same-sex marriage. According to the Telegraph:

Sir Paul Coleridge questioned the decision to concentrate on an issue that affects "0.1%" of the population at a time when break-ups were leaving millions of children caught up in the family justice system. The comments by the judge - who started a charity to try to stem the "destructive scourge" of divorce - come after plans for gay marriage were criticised by the leader of the Catholic church in England and Wales as undemocratic and totalitarian. Sir Paul said that his charity, the Marriage Foundation, did not take a stance on same-sex marriage. But he told a newspaper: "So much energy and time has been put into this debate for 0.1 per cent of the population, when we have a crisis of family breakdown. "It's gratifying that marriage in any context is centre stage... but it [gay marriage] is a minority issue. We need a much more focused position by the Government on the importance of marriage."

Daniel Isenberg noted on the excellent UK Human Rights Blog, that Sir Paul had recently agreed to take a lower profile in his Marriage Foundation.  Indeed, the Office for Judicial Complaints concluded in November of 2012 that:

“The OJC has concluded its investigation into the conduct of the Honourable Mr Justice Coleridge in relation to the judge’s participation in the Marriage Foundation. Having considered all of the facts the Lord Chancellor and the President of the Queen’s Bench Division (on behalf of the Lord Chief Justice) do not consider Mr Justice Coleridge’s involvement with the Marriage Foundation to be incompatible with his judicial responsibilities and therefore does not amount to judicial misconduct. Mr Justice Coleridge has agreed that a lower profile role within the organisation would be more appropriate for a serving judicial office holder.”

I'm not sure that agreement is going entirely to plan.  Where does this leave us?  Well, for those wondering where the radical law and sexuality agenda will lead next, it seems determinedly stuck the conservative groove of marriage for now. 2013, the year of the sequel.

Activate SCOTUS!

For Brit tweeters, SCOTUS sounds like some other mystery character from the West Wing (POTUS has had a bike accident, SCOTUS was riding on the back).  The explosion of tweets on Friday made clear firstly that it stood for Supreme Court of the Untied States, and secondly that something ground-breaking may be about to happen.

Certainly the political shows over the weekend whipped themselves into a frenzy.  I was struck when Meet the Press discussed this as a potential Roe v Wade watershed (the case which legalised abortion).  Others have made the comparison to Brown v Board of Education (the landmark race case).

The news is (if you've been living on the moon) is that the US Supreme Court has agreed to hear two cases - of critical importance for those interested in law and sexuality.  One addresses the Defense of Marriage Act (DOMA) and other addressing Proposition 8.  Put simply, DOMA is a federal law (originally backed by Obama, now rejected) which means that even if individual States allow same-sex marriage, those marriages are not recognised at a federal level.

Proposition 8 was essentially a referendum back in 2008 (the same year Obama was elected to his first term) in the State of California.  California had same-sex marriage but Prop 8 defined marriage in the constitution as being between a man and woman.  In doing so, it rendered same-sex marriages unconstitutional and thus verboten.  As such, the legal challenge to Prop 8 has taken on the air of the black civil rights cases that have gone before.

I've been lucky in recent years to make it over to the States for the LGBT Bar Association Annual Conference, enabling me to meet with, and hear from, lawyers, judges, jurists and state and federal officials.  Over several intense days, I could get a feel for the currents sweeping through the US legal world, but I wasn't able to get over this year, and it's only now that I realise how out of touch I am as a result.  I'm left with digesting the US media and going with my gut - but it's not the same.

My hunch is that the DOMA case will succeed.  By which I mean, DOMA will be overturned.  Even those who are hardly gay rights activists will - I'm guessing - be swayed by the power of individual States arguments (but it's far from a given).

When it comes to Perry, the proposition 8 case, I confess I have no idea.  I'm less optimistic it will succeed but that could well just be my default pessimism.

Anyway, for following every twist and turn in what will be landmark and gripping legal history, check out the brilliant Prop 8 trial tracker website.  I've recommended it before and it remains a wonderful resource. Check it out here.

Perry Presses on to Supreme Court

The Perry/Proposition 8 same-sex marriage constitutionality case looks on course to finally make it to the US Supreme Court this Autumn with a decision next June.   The LA Times reports that:  'In a brief order Tuesday, the U.S. 9th Circuit Court of Appeals said a majority of the court's active judges voted against reconsidering a three-judge panel's decision to overturn the voter-approved 2008 state constitutional amendment. Three dissenting 9th Circuit judges who favored review called the panel's ruling a "gross misapplication" of the law that "roundly trumped California's democratic process." The two judges who voted to overturn the ban last February reiterated Tuesday that their decision was limited to the situation in California.'

I've long been unconvinced that a decision from the US Supreme Court is necessarily a good outcome for those opposed to Proposition 8 (and in favour of same-sex marriage).   Although the outcome is far from certain, the court remains weighted in favour of a conservative outcome and that would then 'lock-in' a potentially unfortunate outcome.

Read the full LA Times story here.

Elena Kagan and the Supreme Court

The US Supreme Court appointments process passes by most UK law students but the decision by President Obama earlier this month to nominate Elena Kagan has caused a spot of bother on the other side of the Atlantic. The Guardian picks up the story today for UK readers. The fuss around her nomination is focusing upon the possibility that she is a lesbian. Or, to be mroe accurate, the fact she looks like a lesbian and old photos of her show her to 'look like a lesbian'. The Wall Street Journal - yes another jewel of the Murdoch news empire - is at the centre of the most recent old photo story, but it was CBS News that got the ball rolling in declaring her to be gay. That post on the CBS News site was subsequently pulled when the White House complained that the network had made "false charges". You can read more on that in the Advocate.

The debate is now focusing around whether she needs to clarify her sexuality -as that might have a bearing on whether she is approved and would potentially impact on future judgments. Obviously she has little choice in disclosing she is a woman and that's no doubt a hindrance in the eyes of some. Her sexuality on the other hand remains largely hidden.

The Guardian story notes the comments of Sunday Times columnist and gay conservative, Andrew Sullivan who stated: "Since it would be bizarre to argue that a justice's sexual orientation will not in some way affect his or her judgment [on gay rights], it is only logical that this question should be clarified."

I disagree with Sullivan on many issues but I think he's right on this one. Of course, part of me thinks someones sexuality should be a private matter but on the other hand it is clearly has the potential to impact on her thinking - hopefully for the better - so yes, she should state how she defines her sexuality and then we can all move on.

You can watch president Obama nominating Kagan below: