Friday, June 26, 2015
Obergefell: An International Perspective
by Noah B. Novogrodsky, guest contributor
Today’s Supreme Court decision in Obergefell v. Hodges made scant explicit reference to foreign or international law, save for a brief reference in Justice Kennedy’s majority opinion to the traditional gender-differentiated definition of marriage held “here and throughout the world.” This is perhaps unsurprising because the Court had before it amicus briefs from opposing groups of foreign law experts (unlike Lawrence vs. Texas) and the international human rights treaties binding the United States are silent on the question of whether a state must issue marriage licenses to same-sex couples.
Nonetheless, the Court’s marriage equality ruling will interest comparative Constitutional scholars for at least three reasons. First, the structure. The majority’s holding that “The history of marriage is one of both continuity and change. That institution—even as confined to opposite-sex relations—has evolved over time” rejects any semblance of strict originalism and appears to embrace an analysis of contemporary understandings that is closely akin to the Supreme Court of Canada’s ‘living tree’ doctrine.
Second, the opinion embraces the notion of human dignity and makes it a central tenet of constitutional interpretation. “As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
Third, this decision, like Lawrence and Brown v. Board of Education, is likely to influence courts and legislatures around the world. Obergefell now aligns the U.S. with a growing number of states that have embraced marriage equality. Just as the U.S. was riveted by the recent referendum in Ireland, other nations with pending legal cases or legislative activity including Mexico, Colombia and Australia, will surely take note of what has transpired here.
You make a very good point. The Chief Justice’s dissent does mention certain other global developments but his opinion pointedly ignores advances in the legal definition of same-sex marriage. The full quote is:
“The Court’s accumulation of power does not occur in a vacuum. It comes at the expense of the people. And they know it. Here and abroad, people are in the midst of a serious and thoughtful public debate on the issue of same- sex marriage. They see voters carefully considering same- sex marriage, casting ballots in favor or opposed, and sometimes changing their minds. They see political lead- ers similarly reexamining their positions, and either reversing course or explaining adherence to old convictions confirmed anew. They see governments and businesses modifying policies and practices with respect to same-sex couples, and participating actively in the civic discourse. They see countries overseas democratically accepting profound social change, or declining to do so. This deliberative process is making people take seriously questions that they may not have even regarded as questions before.”
In this account, the only developments that matter are political or legislative (although interestingly he refuses to name Ireland since to do so would acknowledge an unmistakable trend among liberal democracies). There is no mention of the equally significant jurisprudential decisions or dignity-based reasoning from courts in Canada, South Africa, Brazil, Mexico or other states. The omission is consistent with your point that the dissent willfully dismisses the counter-majoritarian role of the Court of defenders of individual rights.
Posted by: Noah Novogrodsky | Jul 3, 2015 12:36:32 PM
Noah -- It is interesting to note that Chief Justice Roberts makes several references to views held outside the United States, though not surprising, no reference to international human rights law.
Posted by: Jonathan Todres | Jun 30, 2015 12:17:21 PM