In an important test of the legal and cultural acceptance\u00a0of same-sex marriage, the current ban on equal mariage recognition in California is now approaching a hearing in the US Supreme Court. This\u00a0will test the\u00a0validity of\u00a0Proposition 8 – the referendum proposition that succeeded in California back in November 2008, declaring\u00a0that \u00a0“Only marriage between a man and a woman is valid or recognized in California.”\u00a0This referendum overturned the outcome of a California court case based upon the state constitution.<\/p>\n
It appears that the critical issue for the\u00a0US Supreme Court\u00a0 will be whether Proposition 8 breaches the Fourteenth Amendment to the US Constitution, whose key words for present purposes are “nor shall any State …\u00a0deny to any person within its jurisdiction the equal protection of the laws.” As is well known, this provision was essentially to support the abolition of slavery (expressly covered in the Thirteenth Amendment) and to prevent African Americans from being treated by the law as second class citizens (for example with harsher punishments than whites\u00a0for the same crimes, or with race-based impediments to suing, giving evidence, etc.). There has long been controversy over what discriminations other than racial\u00a0ones are\u00a0covered by this clause. Furthermore, it might be asked whether its purpose extends beyond such things as having a lesser protection from crimes and civil wrongs, and having lesser procedural protections when charged with crimes or sued in the courts.<\/p>\n
The case will have immense social significance that will reverberate far beyond the United States, especially if\u00a0Proposition 8 ultimately fails at the highest level of the judiciary. Within the US, the case will also have great technical legal importance in testing the limits of the Equal Protection Clause. Past cases have treated the clause creatively and expansively, so\u00a0will\u00a0the current Supreme Court try to scale that back? Will it be\u00a0inclined to read the clause in a more narrow and technical way to avoid creating a precedent\u00a0for same-sex marriage across the US?<\/p>\n
For those who are not long-time followers of this blog, I favour the provision of access to same-sex marriage; nonetheless, there are tricky legal issues here. I don’t doubt for a moment that some respectable legal arguments can be put that the words of the Equal Protection Clause were intended to have a fairly narrow meaning. The problem for such arguments, from a strictly legal viewpoint, is that the American courts have a past history of reading the Constitution in\u00a0rather expansive ways – including, as I mentioned,\u00a0the Fourteenth Amendment itself. It would\u00a0seem\u00a0invidious if this became the case that adopted an unusually\u00a0narrow approach, by US standards,\u00a0to constitutional interpretation.<\/p>\n