While the battle for the right of same-sex couples to marry in the United States was recently lost in California, the war continues in the courts. The passage of Proposition 8 is already being challenged by several cases, which may be heard as early as March 2009.

On November 4, a slim majority of Californian voters (52 per cent) approved Prop 8, which would alter the California Constitution to provide that “[o]nly marriage between a man and a woman is valid or recognized.”

This nullified the May 15, 2008 decision of the Supreme Court of California, which voted 4-3 that under the state’s constitution, and in particular, its equal protection clause, the right to marriage must be extended to gay and straight couples alike and that banning same-sex marriage constituted illegal discrimination.

Civil unions are not enough

In the California case, as with similar cases around the United States, the central question was whether granting same-sex couples the avenue of domestic partnerships or civil unions only, as opposed to civil marriage, infringed on their equality rights.

In its historic ruling, the California Supreme Court found that civil unions are not a good enough substitute and that given the historic, cultural, symbolic and constitutional significance of the concept of marriage, the state cannot limit marriage to opposite-sex couples. The majority ruling spoke of the “overarching values of equality and human freedom,” the need to protect minorities, the “fundamental right” of marriage and the importance of giving same-sex unions “equal dignity and respect.”

The legal challenges against the passage of Prop 8 have been brought by groups including the Asian Pacific American Legal Center, the Mexican American Legal Defense and Educational Fund and the NAACP Legal Defense Fund, who have contended that Prop 8 so fundamentally alters the California Constitution and the power of courts to do their job that it constitutes a “revision” under state law, which must be accomplished through a process more elaborate than the “amendment” process Prop 8 in fact went through.

Prop 8: An amendment or a revision?

Basically, a “revision” can be placed on the ballot for voter consideration only if two-thirds of the houses of the legislature vote to place it. An “amendment,” however, can be placed on the ballot for consideration by this method or if enough voter signatures are gathered to qualify the measure (in other words, by way of petition). Thus, revisions must go through a process that starts in and runs through the legislature, whereas amendments can bypass the legislature altogether and rely only on signature-gathering and voter approval.

Prop 8 stemmed from a signature campaign and was approved by a majority of the “popular vote,” entirely avoiding legislative debate and process, not to mention potential judicial scrutiny, and thereby allowing a bare majority to strip away the rights of a minority, however recently granted.

If this legal tug-of-war sounds somewhat familiar, it is because the United States is currently undergoing a slow and laborious process similar to that which Canada, among other countries, underwent not that long ago which ultimately resulted in same-sex marriage being permitted here.

The legal odyssey of same-sex marriage in Canada

Same-sex marriage became legal in Canada in 2005 when, despite conservative opposition at the provincial and federal levels, Parliament passed Bill C-38 which ultimately became the Civil Marriage Act.

Bill C-38 was proposed in response to a series of provincial court rulings, culminating in a reference to the Supreme Court of Canada, which held that same-sex couples had the right to marry.

Likely to defuse opposition, the Civil Marriage Act contains a lengthy preamble setting out the reasons why the right to marry is being extended to same-sex couples and notably protects the rights of religious officials to refuse to perform same-sex marriages.

In late 2006, the initial Conservative minority under Prime Minister Stephen Harper kept a campaign promise and held a free vote in the House of Commons on whether Parliament should revisit the issue and introduce legislation to restore the traditional definition of marriage. The motion did not pass and, in effect, the matter is now settled.

Story settled in Canada, notwithstanding the notwithstanding clause

As the subject matter of marriage (and correspondingly, divorce) is governed by the federal government, for this issue to be re-opened in Canada, not only would Parliament have to vote to approve such a step, the federal government would have to attempt to invoke the “notwithstanding clause” in the Canadian Charter of Rights and Freedom (Section 33), which permits the government to pass legislation “notwithstanding” that it would violate the Charter.

The “notwithstanding clause” has only rarely been used and when it has, it did not involve issues with such wide-spread significance to human rights in Canada. The potential use of the clause for an issue such as same-sex marriage has generally been considered to be political suicide as it would require the government to publically acknowledge that it was knowingly violating or withholding the rights of some of its citizens.

By contrast, in the United States, same-sex marriage only has effect at the state level as the U.S. federal government does not recognize same-sex marriages under federal law, in accordance with the Defense of Marriage Act.

The state(s) of marriage rights in the U.S.

Currently, only Massachusetts and Connecticut permit same-sex marriages. Vermont, California (in view of Prop 8), New Jersey, and New Hampshire have created legal unions that, while not called marriages, are explicitly defined as offering all the rights and responsibilities of marriage under state (though not federal) law to same-sex couples.

Maine, Hawaii, the District of Columbia, Oregon and Washington have created legal unions for same-sex couples that offer varying subsets of the rights and responsibilities of marriage under the laws of those jurisdictions.

As a result, even if the federal law was to change to recognize same-sex marriages, individual states would still not be required to extend this right unless the state government or courts specifically provided for it.

In California, Prop 8 was put on the ballot by voter petition and voted for after a campaign largely driven and funded by various special-interest and religious groups and marred with widespread misinformation to voters.

Fight for the right to marry continues

This has allowed the government to keep its hands clean and not take a clear position on the rights of same-sex couples to marry. For example, many politicians, including President-elect Obama, have stated the contradictory position that while they believe marriage should be between a man and a woman, they also don’t approve of the state stripping away the rights of citizens but have not taken steps to prevent this as it was up to the voters.

The fight for the right to marry will not end for same-sex couples in the United States until both the state and federal governments, with or without the oversight of the courts, make the contentious but legally correct move of extending the right to marry to same-sex couples.

Until that time, the future of same-sex marriage in states like California rests in the hands of the people, as initiatives like Prop 8 show. Without legislative intervention and court oversight, however, the so-called “popular” vote often results in the majority tyrannizing the minority.

Debbie Jorgensen

Debbie Jorgensen has joined rabble.ca as its newest editorial intern. Debbie is a Toronto-based lawyer, yoga aficionado and freelance writer and editor, with a focus on legal, political...