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
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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 26th 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.