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(Anthony Jenkins/The Globe and Mail)
(Anthony Jenkins/The Globe and Mail)

Globe Essay

News best not broken by judges Add to ...

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.

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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.

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