Controversy Stirring in the US

Alexis de Tocqueville observed in his journey through the recently founded republic of the United States of America that there was practically no conflict in the nation that did not end in a date before a judge or tribunal. The French writer commented with surprise about the enormous power judges had been granted within the American political system and the great confidence which the citizens had in them thanks to their independence.

Last week, these observations were confirmed. Outside the Supreme Court building in Washington, D.C., there were demonstrations both for and against gay marriage, a controversial issue in contemporary American society. Inside, the court prepared itself to hear the arguments in a case that involved exactly this subject.

The controversy originated in a May 2008 decision by the California Supreme Court, which declared a 1977 law prohibiting gay marriage unconstitutional. A group opposed to this ruling obtained sufficient support in order for a referendum, Proposition 8, to be placed before the people of the state during the November 2008 election, regarding whether the California Constitution should be amended in order to prohibit said marriages. The result of the referendum was favorable to the anti-gay contingent. The constitution was thus amended.

A gay couple filed suit before a federal judge below the argument that this popular pronouncement was in violation of their constitutional rights. In November 2010, Judge Vaughn Walker ruled that Proposition 8 violated the right to due process and equality before the law and ordered an injunction suspending the effects of said proposition while the appeal of his ruling was being resolved. In February 2012, the respective federal appeals court affirmed Walker’s decision. The Proposition 8 backers then filed a writ of certiorari to the Supreme Court to review the case, which it granted in December of that year.

This was how we arrived at the hearing last week. It is common that during the hearing the justices interrupt the attorneys for the parties with complicated questions, ingenious lines of questioning and even rebuttals. Although it is not expected that the court will adopt a decision immediately, the majority of the justices let it be seen that it is very likely that the request to review the case will be denied. In their comments they expressed doubts about the legitimacy of the petitioners as they did not demonstrate damage to their rights, as well as about the occasion for the Supreme Court to adopt a position in a social controversy which is still developing in the political arena.

As can be seen, in a democracy not even referenda are exempt from control if they are seen to threaten constitutional rights. Additionally, the conservative origin of the current American court does not guarantee that it will always agree with political actors from the same school of thought. Its interpretation of the Constitution, accurate or not, is above said concurrences.