As various French newspapers have pointed out, the Constitutional Council will be examining the issue of same-sex marriage today. While gay marriage is still a long way off in the United States, at least on a federal level, it is already the law of the land in seven European countries (six EU members plus Norway). This includes Belgium, Portugal and Spain, all traditional bastions of the Catholic Church. Thirteen more states have some form of civil partnership into which same-sex couples can enter, including France, Germany and the UK.
While the outcome of the ruling is not yet known, the French Constitutional Council ruled last October that, regarding gay adoption, it should not “take a position in an ethical, scientific and undoubtedly political debate on gay parenting“, because that was a legislator’s job and not a judge’s. I think that’s the right approach to take. All seven countries that have legalised gay marriage have done so by passing laws, not punting the issue to the courts. And while there is a very sound argument to be made that equality before the law means eliminating discrimination on all fronts, legislators in America have had an unhealthy historical tendency to pass anything controversial on to the Supreme Court instead of actually doing their job.
Just take abortion. In the late 1960s and early 1970s, before Roe v. Wade, society was gradually becoming more pro-choice, mainly because illegal, dangerous back-street abortions were already taking place and endangering the lives of mothers. Roe, by taking the decision to legalise abortion out of the hands of the lawmaker, was seen as imposing something that very many Americans did not want – and it’s why abortion is still such a major political issue today. In France, where abortion was legalised thanks to the tireless efforts of Simone Veil, the fact that a right-wing government minister worked to pass a law to allow the practice meant that abortion could enjoy at least a measure of democratic legitimacy. As a result, abortion is a non-issue today in France, whereas it wins and loses elections nationwide in the US.
I am not discounting the value of rulings like Brown v. Board of Education. No-one could or should. But supporters of same-sex marriage – and I’m one of them! – should fight to change societal attitudes and opinions of members of Congress, instead of relying on the courts to do the job for us.