After Canada legalized same-sex marriage, many gay couples from the United States travelled north for quickie weddings. Gays began to liken these northern excursions to a new Underground Railroad, or Freedom Trail.
Last week, Judge Vaughn Walker of the U.S. District Court for the Northern District of California offered a decision that may end this lucrative trade for good: He ruled that gay marriage is a basic right, owed to all Americans. In so declaring, he overturned a popular referendum measure California voters passed in 2008, banning gay marriage in the state. The question was listed on the ballot as Proposition 8. Thus, the measure's subsequent alternate name, "Prop 8," to be pronounced with a hiss, smile, or eye-roll depending on one's politics and age.
Judge Walker found that Prop 8 violates the U.S. Constitution - specifically, that it violates the 14th Amendment, the equal protection clause, which guarantees "equal protection of the laws" to all U.S. citizens. Denying weddings to homosexuals also runs afoul of the judge's understanding of the Fifth Amendment due process clause, which states that "no person shall … be deprived of life, liberty, or property, without due process of law."
The case is called Perry v. Schwarzenegger because the plaintiffs, a group of gay would-be newlyweds, had to sue the California Governor to get their constitutional claim to court. Arnold Schwarzenegger refused to get involved. Like Barack Obama, he sent signals that he supports the gay cause, but ultimately refused to speak plainly.
Some hail Perry v. Schwarzenegger as an answer to gay prayers: a bridge over troubled water with no border crossing.
In offering its decision, the court upheld the values of equality and freedom central to U.S. law. But it also ignored legal and political rules developed in all Western countries, as well as in international law, that limit the power of judges.
Courts matter, these rules say. They literally are the rule of law. At the same time, these rules also say that there can be justice only if, at a certain point, the courts yield the floor. Politics must speak. Democracy must answer many basic questions. Slyly, the principle judges are to apply in deciding whether to rule on politically charged matters is termed "discretion."
IN CANADA, LEGITIMACY
In Canada, the Supreme Court affirmed this principle in its 2004 Reference re Same-Sex Marriage. Effectively asked by the government whether Canada is obliged by the Charter to legalize gay marriage, the court declined to answer. It referred the question back to Parliament. Parliament spoke.
There is a popular idea in Canada that homosexual marriage was brought to the country by court order. This is an example of a bad myth. Its lie does not illuminate.
As a result of our judges' decision, gay marriage has a legitimacy in Canada that it will not enjoy in California - nor elsewhere in the United States if the U.S. Supreme Court rules on appeal that homosexual unions should be law across the country. Opponents of gay marriage speak in dark tones of judges usurping the states. They have made weddings the stuff of culture war.
The fact that Judge Walker is a well-known conservative Republican might have weakened their crusade. His right-wing credentials were further burnished in the 1980s when Nancy Pelosi, now a favourite liberal bugbear of the American right and then a young San Francisco congresswoman, led a campaign to halt Judge Walker's judicial nomination by president Ronald Reagan. The appointment was successfully held up, although it was later successfully pushed through by George H.W. Bush.
But none of that counts now: Judge Walker is openly gay! That should be a matter of irrelevance. Many heterosexual jurists of all political stripes have reached the same conclusions in their analyses of the constitutional problems at stake in Perry v. Schwarzenegger. Yet, many look at the case and see a gay man on a mission, rather than a distinguished conservative judge applying the law.
IS GAY THE NEW BLACK?
To give opponents of gay marriage more weapons, out of impatience, is neither right nor smart. Many supporters of the California ruling forget there is only limited truth in the analogy between gays and blacks - the original Underground Railroaders, whose descendants won some of their legal rights in court.
The analogy is good in that it captures the oppression of homosexuals. This is more terrible than even many gays themselves realize. As their movement catches fire, we see more and more clearly how wounded "queer" people are, by families, by faiths, by the state.
A related popular expression has it that gay is the new black. We hear an echo of this in the new Freedom Trail idiom. But the aphorism does not make Judge Walker the homosexual Thurgood Marshall - that profound jurist, revered across the spectrum, who became the first black appointed to the U.S. Supreme Court. Still less does it make him Chief Justice Earl Warren, the author of Brown v. Board of Education.
The analogy has further flaws. In the United States, blacks needed the Supreme Court to implement desegregation. Otherwise, it would not have happened in time for the huge generation of blacks that was rising in the 1950s.
By contrast, North American gays today are surfers on an awesome wave. Things could go awry. Drowning is possible. But for now, gays and our friends are winning. We can afford the luxury of calm.
Doing the work of talking with those who oppose gay rights is a duty. This will go on. Courts cannot stop it. But the work is hard enough, even as it succeeds. Why stuff gay rights down opponents' throats by judicial decree mid-conversation?
Limits on courts' power are old law. But even if they were not, the gay movement would be wise to recall that some news is best not broken by judges.
When I was a teenager in the mid-1990s, in Hamilton, I came out as gay and faced the constant threat of violence at school. I was physically assaulted. Urine was poured over my head. It was dangerous for me to enter the school building. On occasion, I thought of calling the police, or of suing everyone.
Nonetheless, I chose to refrain. I knew it would be better to persuade. I was a gay man on a mission, and so did not want my quest confused with law. I wanted people to change their minds. I wanted justice. Law seemed secondary, "order" a cardinal enemy. Looking back, I think I was right.
My situation was different from the Prop 8 setback in California. My legal rights were established. I chose not to exercise them. By contrast, the legal rights of gays in California and all across the United States are under threat. On another level, however, the conflicts are exactly the same. The fundamentalists who testified against gay marriage in California are my high-school oppressors grown up. The problem remains one of freedom denied by unreason.
RIDING THE CREST
Change for gays has come fast. A momentum draws everyone to rethink what love and sex are, and are for. Gay rights is both a product and a cause of that. Gay marriage is the eye of the storm.
It is possible that an older generation of gays and straight supporters really does fail to see how powerful it is, even as it rides the crest. It is also possible that the younger generation is full of a confidence that can too rapidly turn arrogant. But it is certain that when Canada legalized same-sex marriage, we took another step toward confronting a great evil: the sin we commit in not raising our children to think that gay is exactly as good as straight.
That confrontation matters more than many realize. The methods of bringing people to it must work.
Law gives a clue as to why gay marriage is important: Constitutional freedoms, a slam-dunk fit with gay rights in both Canadian and U.S. traditions, are very much at stake. But strive as many will to square the circle, law is not politics.
It is good that judges cannot answer all. Our Supreme Court suggested as much when it implicitly told the government to not be afraid of the gay marriage question, but rather to answer itself. Mr. Schwarzenegger and Mr. Obama need similar counsel. In looking around for precedents, the federal court in California might have cast a hot eye north. The U.S. Supreme Court still may. Our Freedom Trail has more than one good thing to transport.
Aidan Johnson is a recent graduate of McGill Law School.
SAME-SEX MARRIAGE IN CANADA AND THE UNITED STATES
- Same-sex marriage came to Canada through the Civil Marriage Act (Bill C-38), which became law in July, 2005.
- The Supreme Court of Canada issued its Reference re Same-Sex Marriage in December, 2004. It ruled that legalizing gay marriage was within Parliament's authority and not inconsistent with the Charter, but refused to answer whether the Constitution obliges the government to make the change.
- Further, the court stated in its reference that religious groups have a protected Charter right to refuse to perform gay weddings.
- The United States passed the federal Defense of Marriage Act in September, 1996. It requires the federal government to only recognize heterosexual marriage, and permits states to refuse to enact gay marriage laws. The U.S. District Court for Massachusetts ruled in July that the act's definition of marriage violates the due process clause of the U.S. Constitution, pitting a state that recognizes gay marriage against Washington.
- The granting of marriage licences in the United States is a legal responsibility of states and federal political subdivisions. Gay weddings are recognized and performed in Connecticut, Iowa, Massachusetts, Vermont and New Hampshire, plus the District of Columbia and the Coquille Indian Tribe of Oregon. New York, Rhode Island, and Maryland do not provide gay marriage, but recognize same-sex licences from other jurisdictions.