Foreign and Comparative Law in the Obergefell Argument

by Noah Novogrodsky, University of Wyoming College of Law, Guest Blogger

 Today's oral argument in Obergefell was a strong testament to law's inevitable migration across national boundaries.  

 I was one of the authors of a comparative and foreign law professors amicus brief in Obergefell. The brief was filed in support of petitioners by Professor Harold Hongju Koh, Thomas Buergenthal, Sarah H. Cleveland, Laurence R. Helfer, Ryan Goodman and Sujit Choudhry. We argued that developments in other liberal democracies confirm that legal guarantees of due process and equal protection require full marriage equality. Specifically, we noted that the judicial opinions and legislative developments in a host of other states rely on principles of liberty, equality and human dignity and that the U.S. Supreme Court can and should benefit from those experiences. We also reminded the Court of the influence its decision may have on the rest of the world.

 Our brief cites Fourie, the South African Supreme Court of Appeal decision which evaluated the dignitary effects of excluding same-sex couples from the institution of civil marriage and held that:

    "More deeply, the exclusionary definition of marriage injures gays and lesbians because it implies     a judgment on them. It suggests not only their loving relationships and commitments and loving     bonds are inferior, but that they themselves can never be fully part of the community of moral     equals that the [South African] Constitution promises to create for all."

 To demonstrate the accelerating trend of equal marriage in constitutional democracies, we referenced Conservative British cabinet member Maria Miller’s introductory remarks as she proposed the same-sex marriage bill for England and Wales in the House of Commons:

 “Marriage is not static; it has evolved and parliament has chosen to act over centuries to make it fairer and more equal. We now face another such moment – another such chance in this new century.”

 Today’s argument addressed the relevance of foreign and comparative exemplars in two ways. First, Justices Alito, Scalia and Sotomayor asked what the implications were for this case that the definition of marriage as between men and women had been fixed for ‘millennia’ until the Netherlands legalized same-sex marriage in 2001. Petitioners’ counsel acknowledged that same-sex marriage was legal in 17 or 18 countries. (The difference in the number of foreign states that allow equal marriage derives from how one counts England, Scotland, Wales…) Petitioners also noted the changing definition of marriage over time by reference to the American and European understandings of coverture, impliedly drawing a circle of relevant comparator states.

 Second, just as Canadian courts did in Halpern and EGALE, and the South African courts did in Fourie, the Court grappled with the question of whether denying same-sex couples entry to the institution of marriage demeans their dignity. Respondents’ counsel asserted that purpose of marriage is primarily procreative and that it was never intended to be “dignity bestowing.” Justice Kennedy responded with the comment that “I don’t understand this 'not dignity bestowing.' I thought that was the whole purpose of marriage.  It bestows dignity on both the man and woman in a traditional marriage”