Expect Gay Marriages in the Courthouse, Not the Statehouse

In Europe and most of the rest of the world, gay marriage arrives via legislatures, not courts. But the U.S. is different, as always.
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Parisians protest against the legislature's "marriage and adoption for all" draft law in January. The girl's placard reads, "I know where I come from; I wonder where we're going." (PHOTO: ANDREY MALGIN/SHUTTERSTOCK)

Parisians protest against the legislature's "marriage and adoption for all" draft law in January. The girl's placard reads, "I know where I come from; I wonder where we're going." (PHOTO: ANDREY MALGIN/SHUTTERSTOCK)

Ah, liberal France, with its 35-hour work weeks, powerful unions, and ... massive anti-marriage equality rallies. With the Gallic legislature likely to legalize gay marriage next month, at least 300,000 marched in opposition. Even so, civil rights legislation guaranteeing marriage and adoption rights for same-sex couples has already passed the country's lower house, and is nearly certain to gain full approval in France. The march—which ended with police deploying tear gas—was a useful reminder that European social politics are not as simple as they can seem from across the Atlantic.

Marriage equality has typically arrived via legislatures in Europe, rather than judicial decisions. If France does approve gay marriage, it will be the ninth European state to do so since 2001—each one by passing a specific law enshrining the right. The world's first legal same-sex wedding occurred following passage of a civil rights law in the Netherlands. That was in 2001. Belgium followed with legalization in 2004 and Spain in 2005. Portugal, Denmark, Norway, Sweden, and Iceland also took the parliamentary path.

In the U.S., rights advocates have often avoided the legislature.

"In the U.S., going back to Brown vs Board of Education, there’s a tradition of the courts settling some of the political questions," said Susan Gluck Mezey. Her 2007 study, Queers in Court, Gay Rights Law and Public Policy, tracked 50 years of judicial efforts to establish rights including marriage equality. "Then the legislature reacts to that. The public gets all riled up and all that."

The reason seems intuitive: a national philosophical argument is easier to transform into a legal argument before nine judges than a political fight among 535 legislators.

Mezey argues that isn't really the root of the matter, though. She believes that American legislatures have never shown themselves well-suited to protecting minority rights.

"[Granting rights] would be more effective if it was done through the legislature," she said by phone. "No one could complain that 'I wasn’t represented.' But it’s sort of a contradiction, because if it could be done through the legislature, then you’re not talking about a minority group."

It's a peculiar linguistic argument: if a demographic minority convinces lawmakers to grant a right—as happened with gay marriage in Europe—it suddenly stops being a minority in need of legal protection?

"I see the purpose of the court as protecting minorities...The legislature is designed to represent the majority," she said. "I think legislatures are just not independent enough, or strong enough, to make those decisions. Certainly not in states, and I'm not even talking about Mississippi and Alabama. Illinois is having trouble. In New York State it stalled for two years because they're a bunch of bozos who couldn't get anything passed. In New Jersey the governor vetoed it."

So why did things go differently—and a decade faster—outside the U.S.?

In most cases, the difference seems to have less to do with European openness or tolerance than mundane differences in political structures. Parliamentary systems limit blowback on individual legislators for specific votes. "What happens is, you have socialist governments come in, and they passed laws. In the U.S., even the Democrats work through the courts. So you get this tradition of groups developing, Lambda Legal and these sorts of organizations, and they hire very smart lawyers."

Similar political math seems to push the argument away from the courts outside Europe and the U.S. Though not known for particular openness to homosexuality, South Africa was the first nation to enshrine legal protections for sexual orientation in its post-apartheid constitution. It was the right moment to be guaranteeing rights. By comparison, Canada, with a system similar to that of the U.S., took a federal approach. In the Canadian case, individual provinces began passing laws extending marriage rights to gays and lesbians, eventually forcing the federal government to follow suit.

Mezey simply doesn't think legislatures are very good at extending rights. "It’s sort of like legislators voting for birth control. The polls may be there but they’re still afraid to do it."

Still, it's the people's house, right?

"Sure. One side is, let the political process work," she said. "Same-sex marriage is becoming so accepted, just let the process work and it will be more accepted.

"The other side is, the same argument was made in 1973 with abortion."

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