THE freedom to marry, wrote Earl Warren, chief justice of the United States Supreme Court,has long been recognised as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Warren wrotethat sentence in 1967, by way of explaining why he and his colleagues unanimously ruled that laws banning interracial marriages violated both theequal protection and due process clauses of the fourteenth amendment. Supporters of gay marriage would like to see that same court apply that same reasoning to their cause. On February 7th a federal court in California brought them one step closer.
The United States Court of Appeals for the Ninth Circuit ruled that Proposition 8, a ballot initiative passed by California’s voters in November 2008 amending the constitution to prohibit gay marriage, was unconstitutional. That initiative passed fivemonths after California’s Supreme Court overturned an earlier ban on gaymarriage; during that time, California granted marriage licences to some 18,000 gay couples.
The appeals court upheld a lower court’s ruling in 2010 that Proposition 8 violated the fourteenth amendment, but did so on far narrower grounds, leaving unanswered the broad question of whether states could ever restrict marriage to heterosexual couples, and finding instead that California’s measure visited a unique harm upon gays and lesbians by stripping them of a right they once enjoyed. Under California law, gays retained the rights to adopt children,file taxes jointly and share bank accounts. Proposition 8 simply denied them the official, cherished status of marriage,leading the court to conclude that its sole purpose was to lessen the status and human dignity of gays and lesbians in California.
The case now seems certain to be appealed to the United States Supreme Court, though other states are simply pushing ahead with allowing gay marriage: on February 8th Washington’s state legislature voted to allow it, though the decision could yet require approval at a referendum. Marriage, far beyond such mundane matters aspensions and bank accounts, is of course a hugely emotive subject. As the Ninth Circuit noted in handing down its judgment, Had Marilyn Monroe’s film been called ‘How to Register a Domestic Partnership with a Millionaire’, it would not have conveyed the same meaning.