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 US Supreme Court May Decide Gay Marriage in Court Challenge 

Hassan, Farooq, J.D., Ph.D.


Dr. Farooq Hassan —Barrister at Law • Senior Advocate Supreme Court of Pakistan • Attorney at Law (US) • Special UN Ambassador for Family • Professor of Law Foreign Affairs, Harvard • President, Pakistan Family Forum —Synopsis of address given by the author to the London University, Law School, Kings, College International Legal Studies Program, 15 January, 2010

(Synopsis of address given by the author to the London University, Law School, Kings, College International Legal Studies Program, 15 January, 2010)

I am much honored to present this address to the distinguished gathering attending this special event of academicians, students, lawyers, business leaders  and journalists from South Asia, and the local members of the Pakistan Family Forum in the International Legal Program of London University, Kings College, School of Law.

The focus of my talk is the recent legal developments on the subject of gay marriage in this country.

I am currently in London in connection with lobbying with many eminent and reputed like minded British Church and other Interfaith Organizations against the proposed Equality Bill. I am glad to report that all major faith groups and their community representatives would have a singed a letter together before final voting atthe House of Lords which hopefully will enable commonsense to prevail. I am delighted to report that Baroness O'Cathain's would be speaking in the context of the proposed amendments to retain the status.


I have maintained in many of my previous works and addresses that the core and fundamental definition of the Family given in the Universal Declaration in article 16 (3) has been seriously questioned in the more advanced countries of the world, by skeptics and liberals, and by those with a different sexual orientation approach to life than is traditionally articulated or accepted. The allied question of legally permitting same-sex relationships is also there and has now undergone a change in emphasis from its historical jurisprudence. In the US at the national level this change was effected by the US Supreme Court case of Texas v. White in which relying   on many international texts, the Court held as void a Texas Sate statute forbidding sodomy.

In addition there are other important American cases expressing the same formulation; the holding of the Massachusetts Supreme Court in Re. Greenwich deserves to be mentioned here. These matters appear to supplement the efforts at the UN that we are now witnessing an evolutionary phase of developments in which the current direction of this state of precedents essentially lays the foundation for asserting two conclusions:

(1)  First, that sodomy is not a crime, and

(2) Arguably further that there is nothing in the Constitution preventing a man and a man from staying together and asserting their existence as husband and wife.

These are very pernicious and ominous developments. Besides there’s the case of Sweden in which now a constitutional law allowing same-sex marriage is enforced; in fact Sweden went one further in even legally proscribing criticism of this conduct thus changing the standard that existed hitherto fore on this point in the legal systems of many countries.

These are very, very far-reaching legal matters of an evolving kind which can produce their own consequences and I think there should have been an attempt by the pro-family protagonists to create the kind of atmosphere which does not foster such a development of law.

Such opposition to the current status quo is emanating and is glad to note that several eminent scholars are already out canvassing our perspectives. I am happy to add that there does exist in the US many leading NGOs led by the Howard Center in Illinois which through its World Congress of Families has maintained an international initiative of keeping the traditions of our cherished "Family"  alive.

With this background of this legal debate in mind, at least in the US, I may add that there does exit a most notable encouraging civic set up of important pro family NGO’s to lodge and continue the kind of legal battle that needs to be won by the adherents of the traditional family values.

Recent Litigation in California

On Tuesday, 12 January 2010 the first US federal court case to determine whether states are allowed to ban same-sex marriages has opened in San Francisco, California. This suit is the result of a matter filed by two gay couples in which they challenged the legal validity of Proposition 8, by which a ban was put by the state on gay marriage in the state of California. 

Given the current nature of this matter any ruling reached is expected to be challenged, possibly taking the case all the way to the US Supreme Court. Accordingly I think that the time has come for this subject to be finally decided by the highest court of the land. A Supreme Court ruling would determine the fate of gay marriages nationwide ending this legal part of the struggle that traditional pro-family protagonists have had to endure for the last several decades.

A brief look at the chronology of the legal developments leading to this suit in the state may be noted.

(1) 2004 San Francisco begins issuing marriage licenses to same-sex couples – a Move annulled by Supreme Court months later.

(2) May 2008 Supreme Court votes 4-3 to legalize same-sex marriage; introduced in June that year.

(3) The people of California pass Proposition 8 annulling such marriages.

(4) March 2009 Civil-rights lawyers argue before Supreme Court that referendum is anti-constitutional.

(5) May 2009 Supreme Court rules Proposition 8 is constitutional

The law amended California's constitution to restrict marriage to a union between a man and a woman.  This law had clearly put an end to the dynamics in the US on this point which had witnessed over the past several years many legal developments that were in opposition to the traditional pro-marriage philosophy.

Quintessentially the arguments of the two opposing sides can be summed up as follows. Supporters of the challenge are comparing it to landmark cases which ended segregation in US schools and overturned a ban on interracial marriage. They further say the Constitution guarantees the right to marry but, by limiting it to heterosexual couples, it discriminates against gay people. On the other hand backers of Proposition 8 say the federal case is the latest attempt to overturn what they say is the Will of the people as expressed by the 52% who backed the amendment in a 2008 referendum.

The Chief US District Judge Vaughn Walker would be ultimately deciding whether the ban on same-sex marriage in California is constitutional.

The case’s presentation in the court by high-profile American lawyers such as, Theodore Olson and David Boies ensures that the judicial process would be widely watched and closely followed. Proceedings opened on Monday, 11th January 2010, with testimony from two plaintiffs in the case, Kristin Perry and Sandra Stier, who wed in California 2004 only to have their union later declared invalid.

Supporters of Proposition 8 would argue, I presume, that the state of California does not discriminate against the gay community, as the current law allows the people to get married, as long as they wed a partner of the opposite sex. In other words the traditional concept of marriage between a man and a woman is the juridical sine qua non of proper and valid wedlock recognized the law.

Brian Brown, director of the National Organization for Marriage, which opposes gay unions said "This lawsuit is an attempt……. to put the voters of California on trial…. …..

I think our founding fathers would be rolling over in their graves if they heard that the constitution guarantees the right to redefine marriage," he told AFP news agency.

So whether it is simply a juridical matter dealing with merely the semantics or interpretation to be given to the contemporary meaning of the term marriage or is it really the much deeper fundamental question which touches the social fabric of the western society remains to be seen.

The pros and cons of broadcasting the proceedings also became an issue of considerable debate. Less than two hours before the trial was started, the Supreme Court temporarily blocked a plan to post video of the proceeding on the internet site You Tube. The Supreme Court complied with an emergency request by lawyers who had argued that broadcasting the trial would turn it into a media circus.

The court also blocked the broadcast until Wednesday, the following day in the afternoon, to allow for further consideration of the arguments brought by both sides. Judge Walker had agreed to the taping after a recent rule change allowed for televised coverage of some civil cases. He ruled ultimately that the case was appropriate for wide dissemination because it dealt with an issue of wide interest and importance.

 So it would seem that the matters in issue may well end up in the US Supreme Court for a final adjudication on this debate.

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