Comment: How America’s move towards gay marriage still lags behind the UK

By Cassie Chambers

At first glance, the US Supreme Court decisions yesterday seem like an unabashed win for equality activists in America. In its first opinion of the day, the court declared the Defence of Marriage Act (Doma)—a law that limited federal government marriage benefits to heterosexual couples—unconstitutional.

In the 5-4 opinion, Justice Kennedy wrote: "[T]he federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the state, by its marriage laws, sought to protect in personhood and dignity."

Within minutes, social media was wallpapered with slogans in support of same-sex marriage. The crowd gathered outside the court broke into cheers of "DOMA is dead!" People recognised that history had been made.

Yet all of the chaos created by the first opinion led many to overlook the intricacies of the second. Far from mimicking the unconditional victory of its predecessor, the second opinion declined to say that a state law banning same-sex marriage was unconstitutional. Instead, it used a procedural manoeuvre to find the court lacked the authority to make a decision about the case at this time.

On one hand, this decision was positive in that it left in place a lower court's ruling that allowed same-sex couples to get married in California. On the other hand, the court charged with finding answers to America's most pressing issues dodged the question. 

As it stands now, the Court has said the federal benefits cannot be given in a way that discriminates against same-sex couples. Yet the court has not affirmatively said that there is a federal, constitutional right for same-sex couples to marry. Thus, these rulings do little to help same-sex couples living in the several dozen US states that have legally banned gay marriage.

In short: although we've taken a positive step, it does not go far enough.

Yet the widespread enthusiasm for the court's Doma decision suggests America is ready to make further moves towards marriage parity.  The decisions on Wednesday were a win for equality-activists; these activists must channel the energy created by this win into policy channels.

Interestingly, the UK might play a major role in creating the momentum necessary for this final policy push. Neither judges nor policymakers operate in a vacuum. Popular opinion can and does influence the laws we pass in our legislatures and how we subsequently interpret them in our courts. 

The UK is currently considering its own same-sex marriage legislation. If this legislation passes, as seems now inevitable, it will influence the way Americans—and the rest of the world—thinks about this important issue. It contributes to the impression than the movement towards gay marriage is inevitable, part of a global cultural change. This view could, in turn, lead lawmakers to make real, significant policies change in America and elsewhere. 

This is not to say the path to marriage parity will look the same in the US and the UK. Although the steps each country takes are based on the same, broad goal of equality for same-sex couples, there are clear differences between the paths they will take.

Notably, the US has a history of allowing states to decide important issues for themselves, a history perhaps rooted in America's strong sense of individual liberty. This history was perhaps part of the reason for the court's second decision yesterday, as it maintained the ability of individual states to decide if and how to define marriage.

The UK, in contrast, has a history of collective, centralised social policy. Such a history both leads to and stems from a stronger sense of collective identity. Thus, while Americans set up a health system that allows individuals to choose their health insurance but requires them to pay for it, the UK built the NHS.

In terms of marriage equality, the two countries' differences will likely play out in terms of the scope of each country's legislation. While the UK is set to pass a substantive bill that will lead to centralised changes, marriage parity in the US will gradually occur as each state passes its own legislation.

Yet if this decentralised, American approach is to achieve full marriage equality for same-sex couples, the trend of increased popular support for gay marriage will be vital.  This popular support ensures that the trend towards supporting same-sex marriage continues until every state has had the chance to act.

The UK is part of building that trend.

The NHS became a model for health care reformers in the US—a tangible successful policy that we could hold up as a contrast to our own. Americans awareness of this model, and its successes, played a role in healthcare reform legislation finally passing in the US in 2010.

Many of us now hope for another policy model we can use to affect our own change—a same-sex marriage bill that we can promote as a paradigm for our states to consider.

Cassie Chambers is a former UK Fulbright Scholar and is now based at Harvard Law School.

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