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.