OVER THE last week proponents of gay marriage in the US have won two significant victories in the bitter state-by-state battle that has come to epitomise the culture war between liberal and conservative America.
On Wednesday Washington State won final legislative approval of a measure that will make it the seventh state to recognise same-sex marriage. And on Tuesday the federal 9th US circuit court of appeals struck down as unconstitutional California’s “Propostion 8”, its controversial gay marriage ban approved narrowly by referendum in 2008.
Neither decision is however going to prove the last word. Supporters of the proposition have pledged to take the federal court decision, which upholds a 2010 judicial ruling against the proposition, to the US Supreme Court. That will not be made easier by the narrowness of the court’s decision – it decided, unlike the judge whose ruling it was upholding, not to pronounce on whether a ban on gay marriage is unconstitutional. Instead the court found that the specific ban in California is discriminatory against gays in violation of the equal protection provision of the 14th amendment. The Supreme Court may well decide not to hear the case, preferring to wait until one comes along that allows it to rule on the substantive issue of gay marriage.
If so gay couples may soon again be walking down the aisle in San Francisco. In 2003 the state led the way with a form of civil union that had everything but the name “marriage”. That missing status was granted by the state’s supreme court in 2008 months ahead of the vote on Proposition 8 which put everything into reverse. About 18,000 same-sex couples married – still validly – during that brief summer of legalisation.
Meanwhile, in Washington state campaigners are determined to reverse the legislature’s decision by persuading 120,000 voters to sign a petition for a referendum on defining marriage as a union between a man and a woman. While 30 states have passed measures defining it as such, six already recognise same-sex marriage – New York, Massachusetts, Connecticut, Vermont, New Hampshire and Iowa – as does the District of Columbia. Similar recognition statutes are being debated in legislatures in Maryland and New Jersey, while referendums on the issue are due in November in Minnesota, North Carolina and Maine. The issue is also a sideshow in the presidential election process with Republican vying with each other to denounce the court and relishing the prospect of using it against Obama.