Same-Sex marriage is a more politicised issue in the United States than in the United Kingdom. Legislative support for civil partnerships and now gay marriage has been more forthcoming in the UK than has been the case across the Atlantic. This is partly because of the diversity of approaches to same-sex marriage amongst the different state legislatures in the US. As a consequence of this diversity, same-sex couples who are married in one state are in a precarious position if they move to another state where these rights are no longer recognised.
Until recently, 19 states in the US, plus the District of Columbia, recognised same-sex marriage. However, on Monday, this number rose to 24 when the United States Supreme Court refused to review decisions striking down bans on same-sex marriage enacted by the state legislatures in 5 states (Indiana, Oklahoma, Utah, Wisconsin and Virginia). It is likely that courts in a further 6 states (Colorado, Kansas, North Carolina, south Carolina, West Virginia and Wyoming), all of which currently ban same-sex marriage, would follow suit if challenges were brought.
Opponents of same-sex marriage have criticised these decisions as usurping the democratic process as expressed through the state legislatures. However, by allowing the courts to scrutinise legislation for compliance with principles enshrined in the US Constitution, this is precisely what the US political and legal system allows for. Furthermore, public opinion in the United States does seem to be shifting in favour of same-sex marriage. Legal reform can even influence social attitudes in a particular direction. For example in the United Kingdom, the creation of civil partnerships encouraged support for formalised same-sex unions, rather than social attitudes necessarily being strongly in support of them beforehand.
In the rapidly changing landscape of formal recognition of same-sex unions in the US (and internationally), this is a progressive step towards eliminating disparities in the legal rights and recognition afforded these couples depending on their geographical location. Charlotte Paterson, a psychology professor at the University of Virginia, who has conducted extensive research on gay and lesbian families, recently presented on this issue at the Leverhulme International Network on New Families; New Governance conference at the University of Notre Dame in London. She considered not only the US position but also the global same-sex marriage debate. Her conclusion was that both in the United States and elsewhere, ‘the achievement of true marriage equality anywhere requires marriage equality everywhere’. Monday’s United States Supreme Court decision was a step closer to this.
Philip Bremner is a Lecturer in Law at the University of Sussex