A victory for gay marriage, but this was no victory for democratic politics

President Obama today said that the ruling of the US Supreme Court which asserts gay marriage as a right under the constitution, therefore legalising it throughout America was “a victory.” A victory for who, exactly?


Let me begin by saying that, in this post, I am not going to defend any particular viewpoint on gay marriage or any other moral issue covered. My views are irrelevant.

I think President Obama is hopelessly wrong in this view, for reasons that have got nothing whatsoever to do with gay marriage. It’s no victory, whatever way the ruling goes.

In 14 states, gay marriages are not permitted. Given the high degree of localism in American politics, in a political culture so very different from our own, it’s reasonable to assume that within those states, that ban is pretty popular.

Yet that matters not a jot now, because the Supreme Court has ruled that gay marriage is a right, under the United States constitution.

The depressing reality is that a major legal change has been introduced in the United States by 9 appointed judges, not a state or federal legislature.

This is exactly why issues such as this, or abortion, prove so controversial, because the losing party will always feel that the judges took the wrong view on what this document means.

Indeed, it was this court which, in the 1803 Marbury V. Madison case, gave itself the power of interpretation over the constitution, in a complex legal dispute which centred on a judiciary act conflicting with the third article of the constitution. This means that the highest court in the land ends up being a quasi-legislative body.

If people think the Human Rights Act has given Britain a politicised judiciary, pop across the pond my dears and then you’ll see what a politicised judiciary really looks like.

When the President has the chance to make an appointment to the court (he can do so only when a vacancy comes up), whether the candidate is conservative or liberal is openly discussed. As lawyers (which a nominee nearly always is), it shouldn’t matter. In America, it does.

This isn’t to say that judges don’t earnestly seek to base their decisions on what they honestly believe the constitution says as opposed to what their own personal preferences might be, but the point is that they ultimately get to have the final say on major issues, like gay marriage, like abortion, like whether Florida should have had a recount in the 2000 presidential election.

This means that what they decide might be determined honourably enough according to their judicial philosophy, but certainly that they hold enormous power to make huge decisions on matters of law, even overturning decisions of democratically elected legislatures.

Worse, there are occasions where unconstitutional changes are made in order to force an issue to the Supreme Court in the hope a ruling will go in a particular way; South Dakota’s abortion ban was an example, though in the end it never made it to the courts.
Finally, the judges decide themselves which of the thousands of cases they receive each year, they will hear. Believe me, a bunch of judges who didn’t like gay marriage could just as easily have decided not to hear the case, and today’s massive change for American homosexuals might never have happened.

The absurdity of all this lies both in the American constitution itself, and the deliberately difficult task of changing it. This was made as such to ensure stability, hence there have only been a tiny number of amendments to the constitution in its entire history.

With its primacy disputed, the 1803 ruling is often seen as the point at which it became absolutely clear that where there is a conflict with the constitution, the constitution is king and the Supreme Court is the umpire.

It has ever since been thus, with a history of more liberal and more conservative eras.

It creates deep divisions and ill feeling. It makes decisions on issues such as abortion that, once made, are probably made for life. Americans don’t have a Parliament that can ban it, even if that’s what they want. 

That’s why the pro-life cause is so very, very angry and aggressive, in contrast to its British counterpart.

This is what happens when you live under a document that espouses highly noble principles and is your supreme legal authority, but the legal experts have to tell you what it says on particular issues, or more broadly, what it means in practice.

Our British constitution, by contrast, isn’t codified in to a single document. It is flexible and responsive, since Parliament itself is sovereign.

If they’re unhappy with a law, they can change it. If we don’t like the changes they’re making, we kick them out and let some-one else change it all back again. That’s how it works.

Critics of the Human Rights Act argue that it has politicised our own judiciary. Again, however, if our elected government believes that to be the case, it can scrap it, as is proposed.

Of course the British constitution isn’t perfect. Scotland is governed by a party that virtually nobody there voted for. That means we’ve got to sort out a better settlement for Scotland, which of course is being worked through.

But at least we can adapt, change and amend over time. At least, whether you are pro-life or pro-choice, for or against gay marriage, there’ll always be a purpose for campaigning in defence of your view.

When your constitution is inflexible, judges will tell you what your law ought to be. So whilst gay marriage supporters everywhere will celebrate this US ruling – and I don’t begrudge them a moment of their celebration, this is no victory for democratic politics.