The Rainbow Wave

It has been an extraordinary year for gay rights, particularly when it comes to gay marriage. Unfortunately there have been set backs, most notably in Russia, which I will come to later. Earlier last year I made a prediction that the total population of countries and jurisdictions that have passed same-sex marriage before 2013 would be less than the population of those who passed it in 2013 and 2014. My prediction was true, just a bit conservative. Before 2013 363,310 people lived in places that had legal same-sex marriage, whereas last year places with an additional 37,806,000 people being added in 2013 alone!

Marriage Rights

The first gay couple to get married in France (Montpellier)
source: standard.co.uk

The expanding of marriage rights took place across four continents and seven different countries. Brazil, France, New Zealand and Uruguay legalised it nationwide, taking the total to 15 countries. The UK government also legalised same-sex marriage but it only applies to England and Wales as both Scotland and Northern Ireland have the power to define marriage devolved to them. Scotland is making good progress when it comes to same-sex marriage, a bill that would legalise it has passed the first reading in the Scottish Parliament and awaits another vote. In Northern Ireland there are no plans to extend marriage rights at the moment.

Same-sex marriage seemed unable to stay out of American news this entire year, every few weeks there was something new to celebrate, or be sad about. In total nine states started to issue same-sex marriage licences. Five legalised it through their legislatures (Delaware, Hawaii, Illinois, Minnesota and Rhode Island) whilst the other four legalised it as a result of court rulings (California, New Jersey, New Mexico and Utah). There are many other court cases pending across the country. In addition, six tribal jurisdictions began allowing same-sex marriage. They were the Little Traverse Bay Bands of Odawa Indians, Pokagon Band of Potawatomi Indians, Santa Ysabel Tribe, the Confederated Tribes of the Colville Reservation, Cheyenne and Arapaho Tribes, and the Leek Lake Band of Ojibwe. In 2013 Colorado started offering civil unions to same-sex couples and Oregon began recognising same-sex marriages performed out of state.  

USA Supreme Court Rulings on Same-Sex Marriage

The biggest boost for gay rights campaigners in the US came in June last year when the Supreme Court sided with them in two landmark cases. The court finally put to rest the fight over same-sex marriage in California that has been going on for a decade. Under Republican governor Arnold Schwarzenegger the Democratic controlled legislature passed same-sex marriage, which he vetoed. A challenge was brought to the constitutionality of California’s same-sex marriage ban which resulted in the Supreme Court of California ruling that the ban was unconstitutional. This was rapidly overturned by Proposition 8, which defined marriage as between one man and one woman and received the backing of 52% of the public vote in the 2008 referendum. A suit was then filed in the US District Court for the Northern District of California, challenging the constitutionality of Proposition 8. Judge Vaughn Walker ruled that Proposition 8 did run contrary to the US constitution and hence would have to go. As the state of California refused to defend the law, it was the original organisers of Proposition 8 which then appealed the ruling in court.  The Ninth Circuit Court of Appeals agreed to take up an appeal, when the court ruled in February 2012, it ruled in favour of the gay rights side. So the Proposition 8 proponents had no choice but to go to the US Supreme Court or abandon altogether, naturally they appealed.

The ruling later came on the 26^th of June and the results were rather surprising. The court did not rule based on whether or not Proposition 8 was constitutional, but rather whether its opponents had a right to defend it in federal court. In a 5-4 decision, the Supreme Court decided that Proposition 8 opponents were not able to appeal and so the original district court ruling stayed. What is more surprising is how each justice ruled. It is widely recognised that the court is split along political lines. There are four liberal justices; Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. Opposing them are conservative justices Antonin Scalia, Clarence Thomas, John Roberts and Samuel Alito. Finally there is the swing justice who is viewed as a moderate, Anthony Kennedy. You would be forgiven for thinking that it was the four liberal justices plus Kennedy that enabled same-sex marriage to return to California, but you would be wrong. Instead it was Roberts, Ginsburg, Kagan, Breyer and Scalia that ruled against the Proposition 8 proponents. Kennedy, Sotomayor, Alito and Thomas dissented. Scalia is the most shocking vote as not only is he one of the most conservative justices on the court, he is one of the most conservative men in the country.

The other major case heard by the Supreme Court on gay rights in 2013 concerned the federal Defense of Marriage Act (aka DOMA). The Act was passed in 1996 by a strong bipartisan majority and signed into law by President Bill Clinton. The law basically barred federal recognition for same-sex couples. Section 3 stated that the federal government could not provide benefits to same-sex couples, even in states that had legal same-sex marriage. In 1996 this was of little consequence as no state allowed same-sex marriage, and it wouldn’t matter for another eight years until Massachusetts became the first US state to legalise same-sex marriage in 2004. In 2010 several plaintiffs filed in New York calling Section 3 unconstitutional. The case was called United States v. Windsor and dealt primarily with the case of Edith Windsor who had been taxed on the inheritance she received from her spouse, Thea Spyer. If the federal government had recognised her marriage then she would have been exempt from the tax. By the time the Supreme Court agreed to take the case, eight other states and DC had already legalised same-sex marriage and several more were planning on legalising it in the coming months. The Supreme Court decided in a 5-4 decision that Section 3 was indeed unconstitutional as it violated states’ rights and individual rights. The way the justices ruled was entirely as expected; the four conservative justices opposed gay rights and the four liberal justices (joined by Kennedy) backed gay rights.

Other positive moves on gay rights

One fundamental part of the family life is children, so naturally being allowed to adopt is important to gay people who want a family. There are two types of adoption here; joint adoption and step-child adoption. Joint adoption is when both partners adopt a child that is not the biological child of either of them. Step-child adoption is when one partner is the biological parent of one and the other partner adopts the child as their own. In 2013 France and New Zealand both began allowing joint adoption as a result of legalising same-sex marriage. In Northern Ireland and Gibraltar courts ruled that their respective jurisdictions had to allow joint adoption. Tasmania also legalised joint adoption. In 2013 step-child adoption was legalised in Austria and Germany.

Despite plenty of good news for gay rights in the West, less good news came from other areas of the world. I will be addressing that in the next post.