Thoughts on Proposition 8

Last Tuesday, the California Supreme Court decided to uphold “Proposition 8”, an amendment to the state’s constitution passed by a referendum last November. Here’s the opinion, and a press release summarising it. Proposition 8 amends the constitution so as to restrict marriage to opposite-sex couples; it was a response to last year’s decision by the court giving gay couple a constitutional right to marry, and has successfully removed that right. Dick Carpenter at Volokh Conspiracy was among those who successfully predicted this outcome.

The arguments were as follows. First, it was said Proposition 8 was not valid as it amounted to a revision rather than a mere amendment to the state constitution. Second, it was argued equality is an inalienable right under the constitution, so that it can’t be amended out, at least without some compelling public interest. Finally it was argued that the amendment violates the separation of powers doctrine fundamental to American constitutional thinking, by re-adjudicating, in effect, the issue that the court decided a year ago, i.e. whether gay couples have a constitutional right to marry. The 6-1 majority rejected all these arguments. Proposition 8 is indeed an amendment rather than a wholesale constitutional revision; the constitution’s description of certain rights as inalienable does not preclude constitutional amendments to them; and the constitutional right of the people to amend the constitution does not usurp the function of the judiciary. However, Proposition 8 is prospective rather than retrospective, so that gay marriages entered into before in came into force remain valid.

I don’t claim any expertise in the constitution of California, but the opinion looks to me obviously sound. If changing the rules on who can marry were a revision of the constitution, rather than an amendment, it raises serious questions about how the court could have gone so far as to revise the constitution last year. But anyway, the change is clearly not of such a scale. The other two grounds of challenge seem to me just to be ways of trying to defeat the clear constitutional provision provision for amendment by public initiative. From the point of view of a British public lawyer, anyway, the complaint seemed founded on hopeless creativity. Equally, the application of the interpretative presumption against retroactivity also seems unimpeachable.

I have a number of thoughts leading from this.

Let me make it clear I support gay marriage; in that sense, I’m sorry California will no longer allow it. But I’m glad the court has decided the way it has, firstly because I think it’s legally correct, and secondly, because in general I think it’s preferable for social changes like gay marriage to come in through the ballot-box and legislation, rather than through judicial decision. I can see that some advocates of minority rights might say my approach would mean slower progress in a liberal direction: cases like Roe v Wade achieved things that never would have come about by legislation. That’s a strong point. My answer is that trusting in a written consitutions and in judges to interpret them may lead to Roe v Wade, but it may also lead to District of Columbia v Heller, which hardly represented progress. My preference is really just the traditional British preference for Parliamentary sovereignty and an unwritten consitution, two things that go together inseparably.

Second, some British writers (I’m thinking of Alastair Campbell) have criticised the opinion as though it shows California were somehow behind Britain in terms of gay unions – but I don’t think that’s right. California has already legislated for domestic partnerships. I realise they’re not the same as marriage; but then British civil partnerships, although nearer to equality with marriage, aren’t exactly the same either. California is ahead of us in simply having a debate about treating gay and straight couples equally in all respects.

Finally, I think this debate will come to us in the UK before long, and unfortunately it will come in the form of litigation. Wilson and Kitzinger may have failed in their attempt to have their Canadian marriage declared valid in the UK, but the European Convention on Human Rights is a “living instrument”, to be interpreted in the light of changing social conditions – there is no Scalia-style originalism in Strasbourg. So the more European countries provide for gay marriages or recognise such marriages entered into abroad, the more difficult it will be for the UK to refuse recognition.

Finally, the unexploded, ticking bomb here is EU Directive 2004/38 on the free movement rights of EU citizens and their families. Look at articles 2, 3 and 4: they give an unconditional right of free movement within Europe not only to every EU citizen but to his or her spouse – a term which is undefined. But there can be no doubt that the parties to a same-sex marriage contracted in, say, the Netherlands, are spouses, not registered partners; and interpreting the Directive purposively and against the background of the general EU law principle of equal treatment, it seems to me impossible to read it in a way which excludes some spouses on the basis of their sex or sexuality. At some point, someone’s same-sex spouse is going to establish the right of entry, say to a conservative country like Malta; and it will be clear that the UK, too, must recognise gay marriages as such, at least for EU law purposes.