By Peter Dunne
What is the optimal means of achieving social change? Are the courts the most appropriate vehicle for implementing progress? Does impact litigation really short-circuit the democratic process?
An interesting comparison can be made in the ways which the United States and the United Kingdom both repealed their abortion and sodomy prohibitions. In the United States, progress was achieved through the federal judiciary, with the nation’s Supreme Court issuing landmark decisions in Roe v Wade and Lawrence v Texas. In Britain on the other hand, abortion and the decriminalization of homosexuality came through Parliament, and following a number of highly publicized public reports, most particularly the Wolfenden Report.
What is interesting is the effect that the method of decriminalization appears to have had upon how contemporary society views these issues in both countries. In America, recent events have illustrated just how contentious reproductive rights remain among the public. Similarly, while no serious commentator would suggest that homosexuality should remain a criminal offense in 2012, the fact that the repeal of the Texas sodomy laws came by way of judicial “fiat” rather than through the legislature has created the impression of an LGBT rights agenda, and now stands as a obstacle to other concerns, such as employment and adoption rights.
In Britain, however, where progress was achieved in Parliament, abortion and gay rights remain (with a few exceptions) a relative non-controversy.
Of course, this difference in public attitudes cannot solely be attributed to the manner in which a particular law or the repeal of a law has been introduced. The general tendency of British voters towards more center and center-left politics must also be a factor. Nevertheless, the comparison is interesting.
Earlier this month the British Government launched a public consultation on equal marriage rights for individuals in same-sex relationships. While the battle for marriage equality continues in the U.S. federal courts, it will be interesting to see not only how the UK consultation progresses, but also how the public ultimately reacts should Parliament decide to adopt a positive recommendation.