The United States is a large and powerful country, but it is only one of the 193 member states of the United Nations and represents only 4.4 percent of the world’s population. Surely it makes sense to ask how courts in other jurisdictions are handling same-sex marriage.

An amicus brief submitted to the US Supreme Court from the Marriage and Family Law Research Project, a research center at the J. Reuben Clark Law School of Brigham Young University, surveys what LGBT-friendly courts have said. It turns out that there is no global consensus.

The questions have been added by MercatorNet. For the full text, follow this link.

Who cares what foreign courts have to say? It’s irrelevant to American law.

While international legal opinion is not determinative of whether a particular US practice is constitutional, [the US Supreme] Court has “acknowledge[d that] the overwhelming weight of international opinion,” can “provide respected and significant confirmation” of the Court’s conclusions.1 In Lawrence v. Texas [which legalised sodomy between consenting adults], for example, [the US Supreme] Court cited foreign and international law in support of its conclusion that the claim of a consenting adult to enter a homosexual relationship without fear of criminal penalty was not “insubstantial in our Western civilization.”

America will be a laughingstock of the civilised world. There is global consensus that same-sex marriage is clearly a human right.

Brazil is the only country to nationally create same-sex marriage judicially, out of the 13 international organizations or nations to address the question. It is also true that South Africa has held traditional marriage laws discriminatory, but significantly, has refused to judicially expand marriage, leaving the legislature a number of options, including distinguishing same-sex unions from traditional marriage …

In short, courts with national effect in 11 LGBT- friendly countries, plus the European Court of Human Rights and UN Human Rights Committee, have all rejected a constitutional or fundamental right to same-sex marriage. In contrast, only Brazil has judicially mandated same-sex marriage. The “overwhelming weight of international opinion” provides “respected and significant confirmation” to a conclusion that courts need not overturn male-female marriage in order to adequately protect sexual minorities…

These courts recognize that there are significant moral, religious, and social reasons for opposing same-sex marriage unrelated to impermissible animus… The narrative that liberal democracies’ experience is a “progression towards marriage equality” is simply inaccurate.

Only animus, just plain and simple bigotry, can explain why people oppose same-sex marriage.

With the sole exception of Brazil, no foreign or international tribunal, even those supporting rights for same-sex unions, has relied on claims of invidious discrimination based on improper animus to hold male-female marriage discriminatory … All other national courts to address the issue make abundantly clear that retaining male-female marriage may be motivated and justified by important social considerations unrelated to invidious discrimination.

Even South Africa, which has held that the state may not deny equal rights and benefits to same-sex couples, has rejected improper animus towards lesbians and gays as a basis for its ruling, stating, “It would be wrong and unhelpful to dismiss opposition to homosexuality on religious grounds as simply an expression of bigotry to be equated with racism.” Quoting a previous case, the court explained that

“[t]he issues in this case touch on deep convictions and evoke strong emotions. It must not be thought that the view which holds that sexual expression should be limited to marriage between men and women with procreation as its dominant or sole purpose, is held by crude bigots only. On the contrary, it is also sincerely held, for considered and nuanced religious and other reasons …”

The European Court of Human Rights likewise noted that a same-sex marriage case raised “sensitive moral or ethical issues.”

Foreign courts are leaving same-sex marriage up to the legislatures? I thought that courts were supposed to be enlightened!

This concern for the varied and deeply felt societal views on same-sex marriage has led virtually all foreign jurisdictions to defer to legislatures on this issue. None of these courts has sought to have the final word on same-sex unions, instead expressly inviting and approving legislative responsibility for crafting marriage laws. Legislatures play an important role in this sensitive area because of both the need for democratic legitimacy and the important moral and social views that are raised. The European Court of Human Rights, for instance, observed that

“marriage has deep-rooted social and cultural connotations which may differ largely from one society to another. The Court reiterates that it must not rush to substitute its own judgment in place of the national authorities, who are best placed to assess and respond to the needs of society.”

Courts have recognized the importance of not freezing the social discussion on same-sex marriage and have noted that same-sex couples themselves will benefit from legislative resolution of these issues because of the compromise and resulting stability that the democratic process entails. The South African Constitutional Court, for example, reasoned that

“[g]iven the great public significance of the matter, the deep sensitivities involved and the importance of establishing a firmly-anchored foundation for the achievement of equality in this area, it is appropriate that the legislature be given an opportunity to map out what it considered to be the best way forward.”

We would be far better off when this question is settled once and for all in the courts, where it is shielded from the forces of bigotry and intolerance.

[The US Supreme] Court has indicated that the doctrine of judicial restraint “requires us to exercise the utmost care whenever we are asked to break new ground.” It has emphasized that democratic, respectful, rational deliberation on sensitive issues “is impeded, not advanced, by court decrees based on the proposition that the public cannot have the requisite repose to discuss certain issues.”

… the European Court of Human Rights, despite deep commitment to sexual orientation rights, has recognized the importance of affording member states of the Council of Europe a wide margin of appreciation in this area because of the “absence of a European consensus and taking into account that the case at stake [challenging same-sex marriage] undoubtedly raises sensitive moral or ethical issues.” Concerns of the complexity and sensitivity of marriage and family issues have been strongly emphasized by courts throughout the world.

Taking a highly contested issue outside the arena of public debate and legislative action … usually only serves to perpetuate conflict and polarization.

 … courts worldwide have refused to freeze the discussion about same-sex marriage but instead permit or invite legislative action in this arena. They have explained such legislative deference by citing the democratic legitimacy of legislation, the need for nuanced compromises in a socially and morally complex area, and the need to ensure firmly grounded, lasting solutions on this topic, all of which can only come through legislative processes.

Michael Cook

Michael Cook

Michael Cook is the editor of MercatorNet