Financial Times Editorial Opinion: Proposition 8

Financial Times Editorial Opinion: Proposition 8
Copyright The Financial Times Limited 2010
Published: August 29 2010 20:44 | Last updated: August 29 2010 20:44
http://www.ft.com/cms/s/0/7fad91dc-b398-11df-81aa-00144feabdc0.html


Recently a California court ruled against Proposition 8, a ballot measure that banned same-sex marriage. In a minutely-argued finding, Judge Vaughn Walker found that the ban violated the constitutional rights of gay men and women. His reversal of the ban has been stayed by an appeals court. The issue is heading for the Supreme Court.

Judge Walker’s reasoning is difficult to fault. The legal institution of marriage is a complex set of contracts, mutually recognised in multiple jurisdictions. This makes it an indispensable disposition. There is no principled reason to deny these arrangements to gay couples.

Why should civil unions not suffice? They provide for some of the rights and duties of marriage but not all, and typically are recognised only by the jurisdiction that created them. A US citizen can sponsor a marriage partner for citizenship; partners in civil unions cannot. If you are married you can file a joint tax return, make medical decisions on behalf of your partner, claim Social Security survivor benefits: the list is long. Partners in civil unions lack these rights.

Judge Walker was correct to find the inequity constitutionally indefensible, but do other factors apply? Defenders of Proposition 8, while insisting that the ban is constitutional, also wish it upheld for reasons of judicial modesty. They say the court has reversed the popular will – that in ruling for same-sex marriage it has ruled against democracy. This is a familiar dispute in US politics. When public opinion and the judges’ view of the law diverge, how forceful should judges be?

If and when this gets to the highest US court, the answer should depend on two things: whether the justices can reach consensus on the constitutional points, and how far, if at all, public opinion dissents. Other things equal, a closely divided court should be circumspect, the more so if the public would be trenchantly opposed to its ruling. In fact, there is reason for optimism on both points.

Because Judge Walker’s argument is so persuasive, one can hope that the Supreme Court will reach consensus. Meanwhile public opinion is moving fast in the same direction. The same-sex marriage ban passed by a narrow margin in 2008. In 2010, opinion has shifted. Today, polls suggest, most Californians support gay marriage, and for the first time, according to one new poll, a slender majority of all Americans agree. It seems the US is ready to right this wrong.