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hughDanDan Tench is the Head of Public Law at Olswang LLP, Hugh Tomlinson QC is a barrister at Matrix Chambers.  They are both editors of the UKSC Blog.

Last month, the US media briefly turned its almost undivided attention to a hearing before the US Supreme Court.  The case concerned the lawfulness of prohibitions on the recognition of gay marriage.  Reporters were stationed inside and outside the court and every nuance of what each of the Justice during the hearing said was carefully analysed by pundits.  The whole media circus seemed more appropriate to a cup final than a court hearing.

British lawyers look across at this brouhaha with a mixture of incomprehension and envy.  Legal arguments in our own courts, including our own Supreme Court, are never the centre of public attention in the same way.  And this highlights an important difference between the role that law plays within the two countries in framing the debate in important matters of public policy.  Both approaches have their advantages.

The cases before the US Supreme Court related to two laws.  First of all, in 2008, voters in California, passed in a measure known as “Proposition 8”, which meant that gay marriage was unlawful within that state.  Second, a federal Act, the Defence of Marriage Act (DOMA) passed in 1996 (and signed by Bill Clinton) provided that gay marriage – even if lawful in some states – could not be recognised by the federal authorities and so privileges applicable to married couples – such as certain tax exemptions – did not extend to same-sex couples.

At the heart of each challenge was the question of whether each law was consistent with the Equal Rights Protection Clause of the Fourteenth Amendment to the US Constitution.  Where there is a disparity of treatment between different classes of citizens (which there plainly is in respect of gay marriage), it must be objectively justified.  The question is whether there is such an objective justification for the laws in question.

This question has been considered by other courts in the US.  For example, Proposition 8 and DOMA had already both been struck down by lower federal courts, and two of those decisions are now under review by the Supreme Court – one for Proposition 8, one for DOMA.  Some of the other states’ bans on same-sex marriage have been struck down by state supreme courts, applying equal rights provisions in state constitutions. 

The cause of gay marriage is also being pursued through the political process.  There are initiatives all over the US to make gay marriage lawful in individual states.  This reflects a sea change in public opinion.  But the political debate is significantly framed by the legal argument and the legal and political processes move in tandem.

The courts system in the US, and in particular the Supreme Court, has a fine tradition of leading public debates of on matters of importance.  The great advances in civil rights from the 1950s were largely instigated by legal rather than political decisions: from the school desegregation decision in Brown v The Board of Education onwards.  And the right to an abortion, one of the most contentious issues in American public life, was first recognised as a right by the Supreme Court in the 1973 decision in Roe v Wade. 

The recent US Supreme Court cases have added a legal and rights dimension to the debate over gay marriage which has been largely absent here.  The debate in the UK has largely ignored legal but has concentrated on the moral and political dimension.  This has led to a curious reversal of the terms of the debate.  Rather than considering what legally recognised justification can be advanced for a ban, the question in the UK has largely been seen as one of justifying the extension of marriage to same sex couples. 

One reason for the absence of legal contest over these issues in the UK is the lack of a mechanism for constitutional challenge to the validity of laws.  The powers of parliament not being limited by a written constitution, there has traditionally been no way of testing the propriety of laws against general principles.  However, things are slowly changing.

Firstly, the decision of the UK in 1973 to join the European Economic Community (as it was then) brought with it the requirement to treat the law of the Community as superior to that of the UK.  For the first time, our courts could strike down legislation on the basis of its incompatibility with a higher law.  In fact, Community law typically relates to more arcane matters of trade or work which while important tend not to raise matters of central public concern.

Secondly, individuals now have the right to apply directly to the European Court of Human Rights in Strasbourg to challenge the compatibility of UK laws with the European Convention on Human Rights.  The fact that Parliament has passed a law is, to the fury of many politicians and newspapers, not regarded by the Strasbourg Court as a decisive or even important factor in favour of their human rights validity. 

The influence of the Convention has been even more strongly felt after the Human Rights Act 1998 came into force in 2000.  This, for the first time, gave the domestic courts the power to declare statutes incompatible with higher law, in the shape of the human rights Convention.  In Scotland, the Convention forms part of the constitutional settlement on devolution and the courts there have the power to strike down incompatible legislation.

Finally, the establishment of the Supreme Court in 2009 created the potential for an “apex court” in the UK with a greater sense of its own identity and independence.  It is too early to say whether, over time, it will become more like its American cousin in taking on the great social and political issues of the day, reframed into a legal context.

But while the active role is the US courts is firmly established and respected, the increasingly interventionist approach of the UK courts remains controversial, as was seen in the reaction to the decision of the Court of Appeal recently to block to deportation of Abu Qatada on human rights grounds.  Some cry that the courts are undemocratic and are denying the will of the Government and Parliament.  The short answer to this is that the rule of law which is an essential feature of democracy and that both the popular and the unpopular are entitled to its benefits. 

In the meantime, the application of a legal approach to a difficult matter of public policy can be useful.  When the challenge of the lawfulness of the ban on votes for prisoners was heard before Court of Human Rights, the Government was unable to provide convincing arguments as to why such a ban is strictly necessary.  The Court provided a clear and dispassionate analysis of the issue.  Although politicians are often tempted to react to this kind of judgment by posturing, a legal focus should lead to them thinking more clearly about the policy justifications for the positions which they adopt.  This should, in turn, produce better policy making.

The legal and political gay marriage debates over recent months have, once again, highlighted the deep cultural gulf between the UK and the US.  It is, nevertheless, a gulf which is narrowing and there is much that we can learn from recent events in Washington.