Nuremberg Proposition 8

The abominable retroactivity of Proposition 8.

Via Ezra Klein, a moving campaigning video against Proposition 8.

“Fidelity”: Don’t Divorce… from Courage Campaign on Vimeo.

I have taken no part in this before now, justifying my cowardice by the European tradition that these issues are very dependent on the sensibility of a particular society, to which in this case I don’t belong. In contrast to the boldness of SCOTUS and the California and Massachusetts Supremes, the prudent European Court of Human Rights has for instance tried its level best to stay out of the abortion debate, and where it has been forced to decide, has ruled (Polish case, Portuguese case) on the narrowest possible grounds. The governing philosophy, that human rights is a coarse mesh within which democratic legislatures enjoy a wide “margin of appreciation” over policy, could take Góngora’s beautiful lines on a fishing net as its motto:

Fábrica escrupulosa, y aunque incierta,

Siempre murada, pero siempre abierta.

(A scrupulous work though uncertain: always walled, yet always open).

But hey, what’s with this retroactive annulment? Leaving aside the cruelty to those couples who married in good faith under the law as it stood last year, what kind of respect for the law and the institution of marriage is shown by this casual trashing of a solemn legal act? If a referendum can do this, tomorrow it can invalidate marriages contracted on Fridays, or make polyandry compulsory.

I looked at some really nasty legislation to find a precedent.

* The Prohibition of Mixed Marriages Act, 1949, one of the building-blocks of apartheid South Africa? No; it’s “henceforward.”

* The Virginia Racial Integrity Act 1924, the epitome of American eugenic insanity? Nothing.

* The 1935 Nazi Nuremberg Law for the Protection of German Blood and German Honour? Not really. This made marriage between Jew and Aryan into a serious criminal offence; it did not systematically annul previous ones, though it left the option open to the state prosecutor as a measure of individual persecution.

Even in this revolting company, Proposition 8 therefore stands out.

Is there a better precedent in the series of Federal laws against Mormon polygamy, starting with the Morrill Anti-Bigamy Act of 1862? Only partially. These seem to have criminalised the state of bigamy, and annulled antecedent legislation of Utah territory allowing polygamous marriages. But whatever you think of the merits of the ultimately successful persecution, Utah was Federal territory, and you could question the territory’s competence. Existing state laws had retained the English prohibition of bigamy. The Mormons knew they were challenging the legal norms of the society they had fled. (Paragraph modified)

Polygamy is alive and well in Europe, as a result of large-scale immigration from parts of South Asia and sub-Saharan Africa where it is legal and customary. English law recognises the validity of polygamous marriages contracted in such countries: the government estimates 1,000 of them. France has many more, 10-20,000, also an official estimate; the debate is about practical questions of residence permits and family allowances, though I dare say an inheritance lawsuit will crop up sooner or later. Italy is unofficially guessed to have 14,000, tolerated rather than recognized.

Against the run of the play, the Catholic Church in Britain also shows an example. The Church of England started to ordain women priests in 1992. The Vatican fulminated against Anglican women priests, and welcomed Anglo-Catholic dissenters who share this position. But a good number of these were married. They still are.

Author: James Wimberley

James Wimberley (b. 1946, an Englishman raised in the Channel Islands. three adult children) is a former career international bureaucrat with the Council of Europe in Strasbourg. His main achievements there were the Lisbon Convention on recognition of qualifications and the Kosovo law on school education. He retired in 2006 to a little white house in Andalucia, His first wife Patricia Morris died in 2009 after a long illness. He remarried in 2011. to the former Brazilian TV actress Lu Mendonça. The cat overlords are now three. I suppose I've been invited to join real scholars on the list because my skills, acquired in a decade of technical assistance work in eastern Europe, include being able to ask faux-naïf questions like the exotic Persians and Chinese of eighteenth-century philosophical fiction. So I'm quite comfortable in the role of country-cousin blogger with a European perspective. The other specialised skill I learnt was making toasts with a moral in the course of drunken Caucasian banquets. I'm open to expenses-paid offers to retell Noah the great Armenian and Columbus, the orange, and university reform in Georgia. James Wimberley's occasional publications on the web