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Between ballot and gavel

On gay marriage,the US court would rather take its cue from the executive

Written by Rahul Kripalani | Published: April 4, 2013 12:14 am

In 2003,the US Supreme Court ruled that laws criminalising sodomy were unconstitutional. Closer home,last year,the Supreme Court of India reserved its order on an appeal against a similar decision of the Delhi High Court. By June this year,the US Supreme Court,will pronounce judgment in two seminal cases concerning the right of same-sex couples to marry. There are two laws under scrutiny: California’s Proposition 8 and the federal Defence of Marriage Act,popularly called DOMA.

Proposition 8,a law made by plebiscite,inserted the following words into the constitution of California: “only marriage between a man and a woman is valid or recognised in California”. It was passed in November 2008 to specifically overrule the judgment of the supreme court of California,which held that same-sex couples have a constitutional right to marry. Proposition 8 was then challenged and,affirming the trial court’s decision to strike it down,the US Court of Appeals in San Francisco held that the state’s voters were not permitted to withdraw or negate the right to marry once it had been recognised by the state supreme court. This ruling was confined to California. DOMA,the other statute under consideration,has a much wider reach. Since it is federal,it applies uniformly to all 50 states. DOMA defines marriage as a legal union between one man and one woman,and the word “spouse” refers only to a person of the opposite sex. It thus comes in the way of the states that might want to legalise gay marriage,by essentially saying that the federal government will not recognise that marriage. Inability to marry means same-sex couples are denied around 1,100 federal benefits that opposite-sex couples enjoy,such as insurance and social security survivors’ benefits,immigration and the filing of joint tax returns. But former president Bill Clinton,who signed it into law,has subsequently changed his position and advocated its repeal. Eight federal courts have held DOMA to be unconstitutional.

California is one of the nine states in the US that allow same-sex couples certain rights,such as the right to enter into a civil union and the right to adopt. However,the right to marriage has become a bone of contention. Neither DOMA nor Proposition 8 is being defended by the executive. Proposition 8 is being defended by its initators. The Supreme Court has never before allowed the proponents of a law to defend its validity before it. Similarly,DOMA is being defended by a section of Republicans from the House of Representatives,with the permission of the court. In the DOMA case,the federal government has appealed that the decision of the appeals court,which ruled against DOMA,be upheld. In other words,the executive is requesting the Supreme Court to definitively and conclusively hold DOMA and Proposition 8 to be unconstitutional,so that it can stop enforcing them. But in the absence of an adversarial equation,the court is actively grappling with the issue of jurisdiction in this case. The US Supreme Court has no power to issue advisory opinions,unlike in India,where Article 143 of the Constitution allows the president to refer a question of law or fact to the Supreme Court for its opinion. Another thorn that has presented itself is that the judges are divided on whether their ruling on Proposition 8 will apply to all 50 states or only the nine states where some form of civil union or domestic partnership is currently permissible.

The chief question in the DOMA litigation concerns the separation of powers. The American concept of federalism is different from the Indian concept. The American constitution provides that powers not expressly granted to the federal government,and not prohibited to the states,are reserved for the states — in India,residuary legislative subjects are granted to Parliament. It is being argued that because every state has always held the power to legislate on marriage related issues,as a residuary power,DOMA is an affront to the American concept of federalism.

While same-sex couples are looking to the Supreme Court for respite,this particular case doesn’t seem to be one where it can issue a sweeping judgment permitting or constitutionalising gay marriages. Moreover,the US Supreme Court,which sits en banc in its present conservative-leaning formation of five Republican appointees and four Democrat appointees,seems hesitant to adjudicate on the issue.

Even Justice Sotomayor,a Barack Obama appointee,raised questions such as if procreation is the stated purpose of marriage,why must couples above the age of 55 and infertile couples be afforded the right to marry? The court also asked how same sex couples could could be prevented from marrying once they were permitted to adopt children. Ultimately,it appears that the court does not want to enter into this socio-political wrangle at this juncture. Its position has consistently been that it is there to adjudge the law rather than form it. It is thus an issue of ballot versus gavel,and in this case,it appears that the gavel wants to see what balance the ballot will strike.

The writer is a Delhi-based lawyer,express@expressindia.com

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