Little chance of US-style gay marriage ruling here

5 August 2010 by

A Federal court in California has struck down a ban on gay marriage in the state, marking the first step on a path to a United States Supreme Court decision on the issue. A similar decision is unlikely here, however, given a recent European Court of Human Rights ruling on gay marriage. Ultimately, only Parliament is likely to bring about a change to the law in the UK.

The decision in Perry v Schwarzenegger has been widely reported and can be downloaded here. U.S. District Judge Vaughn R. Walker found that California’s ‘Proposition 8’, approved by voters in 2008, was unconstitutional. SCOTUSBlog explain the reasoning:

The judge, in finding a violation of the Constitution’s guarantee of legal equality, concluded that California could not justify treating committed couples differently solely because they were of the same sex. He applied the lowest constitutional test — “rational basis” – to this differing treatment. He also ruled that Proposition 8 violated rights that are protected by the Due Process Clause.

The case is interesting in that it was fought not just on the basis of constitutional principle, but rather an elaborate evidence-based analysis of the sociological status of gay marriage. The judge ultimately made a finding that:

The evidence suggests many reasons for this tradition of exclusion, including gender roles mandated through coverture, social disapproval of same-sex relationships, and the reality that the vast majority of people are heterosexual and have had no reason to challenge the restriction. The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry (p 112)

This evidence-based approach has led some to argue that the ruling will be harder to appeal in the Supreme Court, where the real fight is likely to eventually take place. The New York Times reports:

Andrew Koppelman, a professor at Northwestern Law School, said “if the Supreme Court does not want to uphold same-sex marriage, its job has been made harder by this decision.” The reason, he said, is that while appeals courts often overturn lower-court judges on their findings of law — such as the proper level of scrutiny to apply to Proposition 8 — findings of fact are traditionally given greater deference. “They are supposed to take as true facts found by the district court, unless they are clearly erroneous,” he said. “This opinion shows why district courts matter, even though the Supreme Court has the last word.”

Fiona De Londras has provided an in-depth analysis of Perry on the Human Rights in Ireland Blog, and compares the situation to that in Ireland which has recently legalised civil partnerships for same-sex couples. De Londras also discusses the case of Zappone & Gilligan v Revenue Commissioners, in which a couple are seeking recognition of a gay marriage originating in Canada, which continues to await its Supreme Court hearing in Ireland (information on the KAL Case).

From a UK perspective, as I posted recently, gay marriage is not available here, although civil partnerships are and these are starting to look almost identical to ordinary marriage in any event. The Civil Partnership Act 2004, passed under the previous government, entitles same-sex couples to similar rights that they would receive under civil marriage, for example in relation to property, tax and pensions.

It is unlikely that judges here can be relied upon to extend marriage rights to same-sex couples in light of the recent judgment of the European Court of Human Rights in Schalk and Kopf v. Austria, a decision which the UK expressly backed. The Strasbourg court rejected the applicants’ argument that Austria’s refusal to grant same-sex marriages represented a breach of their human rights. It observed that among the Council of Europe states there was little or no consensus on same-sex marriage, and that this was therefore a matter for the national authorities who were best placed to assess and respond to the needs of society in this field. Whilst it is open to the UK courts to take a different view, a change in the law is more likely to come by way of a resolution of Parliament rather than legal challenge (see Has the time come for gay marriage in the UK?)

So, Perry v Schwarzenegger is probably of most interest to UK gay marriage campaigners from a tactical, rather than legal perspective. The sheer force of the opposition movement to gay marriage in the US has meant that rights campaigners have had to seek out a watertight case, not just on the basis of constitutional principle but also on hard factual evidence of social attitudes to gay marriage. This would probably be the right strategy here, given opposition from religious groups is nowhere near as strong.

The UK Supreme Court could respond favourably to an argument that civil partnership is so similar to marriage now that it is irrational and contrary to the European Convention on Human Rights to deny homosexuals full marriage rights. However, a UK court could always fall back on the decision of the European Court in Shalk and leave the matter for Parliament to decide. This is still the most likely outcome of a court challenge. But a well-coordinated and evidence-based campaign aimed at the new government – who are at least interested in gay marriage – may mean that by the time Perry reaches the US Supreme Court the UK could have leapfrogged the US on the issue.

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