The Californian Supreme Court handed down a landmark decision last Thursday (15 May) which struck down legislation that banned gay marriage in the State of California.
The statute was invalidated on the basis that discrimination on the grounds of sexual orientation contravened the Equal Protection clause in the Californian Constitution and, hence, was unconstitutional.
This makes California the only state in the USA besides Massachusetts that allows gay marriage. What is significant about this ruling is that California has long played the role as the vanguard in American social policy and amendments to Californian law have historically acted as a harbinger of change for the rest of the country.
However, it appears that this court ruling may not have settled the issue in California because there is a very high likelihood that the Californian electorate will face a referendum in November 2008 to decide whether marriage should be defined in the Californian Constitution to be expressly between a man and a woman.
Twenty-six other states in America have already passed similar retrograde amendments. However, the issue is likely to be more heavily contested in California, which is generally known for its liberal views and is home to very large and well-established queer population. It has been widely reported that both the religious Right and gay and lesbian lobbyists are gearing up for a campaign of epic proportions in California in the lead-up to the referendum.
What this latest challenge highlights is that court-based solutions are not necessarily the answer to resolving controversial social issues. This is not to say that the courts do not have a role to play in putting these issues on the national agenda and upholding principles such as equality and non-discrimination which form the cornerstones of our legal system.
For example, the 1992 Australian High Court’s Mabo decision did much to break the political impasse around indigenous land rights and raise the issue in the public consciousness.
Similarly, the recent decision by the Californian Supreme Court has the potential to do the same. However, the ultimate battle will be won or lost in the hearts and minds of the people.