Former Legal Advisor to the US State Department and Yale Law School Dean Harold Koh headlined a star-studded team of scholars in an amicus brief urging the Court to join the “emerging global consensus” for same-sex marriage. Their argument amounted to a more sophisticated version of “everyone is doing it, so get with the times.”
The problem is, that’s just not true. That’s why we wrote a brief on behalf of fifty-four comparative and international law scholars correcting the record.
Very Few Nations have Redefined Marriage
There is no “emerging global consensus” for same-sex marriage. In fact, same-sex marriage in any form has been adopted by only 17 of the 193 member states of the United Nations—a mere 8.8 percent. In their brief, Koh and company stretch that number to twenty by counting Wales, Scotland, and England as separate nations, and by counting Finland, which has legislation in the works, but no final law.
All of the rest—176 sovereign nations— retain the understanding of marriage as the union of a man and a woman. That is, taking the 193 member states of the United Nations as the reference point, over ten times as many countries disallow same-sex marriage as allow it. Additionally, more nations have constitutional provisions defining marriage as the union of a husband and a wife—47, as of last month—than have recognized any form of same-sex union. Many other countries have adopted legal protections of same-sex unions that stop short of changing the definition of marriage.
Moreover, rejection of same-sex marriage is not the result of mere animus and intolerance: 95 of the 176 states allowing only traditional marriage have decriminalized homosexual conduct. Eighty-eight have affirmatively extended constitutional and/or legislative protections to LGBT individuals, including prohibiting discrimination in employment based on sexual orientation, considering hate crimes based on sexual orientation as an aggravating circumstance, prohibiting incitement to hatred based on sexual orientation, and constitutionally prohibiting discrimination based on sexual orientation.
The countries that have refused to redefine marriage are a far cry from the “anti-models” that the Koh amicus brief puts forward. Rather, they are constitutional democracies that share our values of individual freedom.
Only One National or International Court in the World has Mandated Same-Sex Marriage
Twelve national and international tribunals in eleven countries have explicitly upheld male-female marriage as consistent with human rights. These include some of the jurisdictions with the earliest and strongest LGBT protections in the world. These are hardly backwoods courts or bastions of bigotry.
In fact, the list of the twelve tribunals in two foreign organizations and nine nations that have upheld male-female marriage against claims of discrimination reads like a Who’s Who of progressive, liberty-loving democracies: the European Court of Human Rights, the UN’s Human Rights Committee, and national courts in Germany, Austria, France, Spain, Finland, Italy (both the Constitutional Court and the Court of Cassation), Ireland, Chile, and Colombia. Even though these bodies and countries have strong and deep support for LGBT rights (and a few have legislatures that have gone on to legalize same-sex marriage), the courts have rejected claims that same-sex marriage should be judicially established as a fundamental or constitutional right. Amazingly, the Koh amici cite only two of these decisions.
Particularly notable is the repeated refusal by the European Court of Human Rights to mandate same-sex marriage, since it has been supportive of sexual orientation and transgender claims in many other settings, has held that “differences based on sexual orientation require particularly serious reasons by way of justification,” and has suggested that same-sex unions could fall under European Convention protections for family life. Most recently, however, in July 2014, the European Court’s Grand Chamber declined to recognize a fundamental right to same-sex marriage. The Chamber explicitly recognized that, “in the absence of a European consensus,” the legislatures of each country should be given space for a great amount of discretion and latitude in crafting marriage laws, especially since such laws often raise “sensitive moral or ethical issues.”
These courts recognize that there are significant moral, religious, and social reasons for opposing same-sex marriage that are unrelated to impermissible animus. Even the South African Constitutional Court, which is deeply solicitous of minority rights, including the rights of sexual minorities, has stated that “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.”
This concern for the varied and deeply felt social 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, they have expressly invited and approved legislative responsibility for crafting marriage laws. Legislatures play an important role in this sensitive area. They provide the proper, democratically legitimate forum in which to consider the important moral and social views that are raised in considering the definition of marriage. 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
Given 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.
That court rejected even a temporary judicially crafted remedy, which “would be far less likely to achieve the enjoyment of equality as promised by the Constitution than would lasting legislative action . . . the greater the degree of public acceptance for same-sex unions, the more will the achievement of equality be promoted.”
A judicial rush to judgment seems particularly inopportune in a country in which general social attitudes already appear to be shifting. Especially since we’ve heard this tune before, as same-sex marriage and religious liberties supporter Professor Robin Fretwell Wilson lamented:
Roe may have taken national policy [on abortion] too abruptly to a point toward which it was groping more slowly, and in the process may have prevented state legislatures from working out longlasting solutions based upon broad public consensus.
Only one country on the entire planet—Brazil—has mandated via its judiciary that same-sex couples across its nation have access to traditional marriage. The South African Constitutional Court, the only other nationally binding court to hold marriage laws discriminatory, stopped short of judicially mandating a “one size fits all” approach to marriage, leaving the legislature a number of options, including distinguishing same-sex unions from traditional marriage.
Other Western Nations Understand: We Must Leave Marriage to the People
Courts worldwide have refused to freeze the discussion about same-sex marriage. Instead, they have invited 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 these can only come through legislative processes.
In countries around the world, respect for legislative processes in resolving questions of same-sex marriage has paid dividends for all.
If the US Supreme Court is concerned about being out of step with the world’s leading democracies, it couldn’t make a bigger mistake than becoming one of only two nations in the world to cut democracy off at its knees and force its judicial will upon the people.
Lynn D. Wardle is the Bruce C. Hafen Professor of Law at the J. Reuben Clark Law School at Brigham Young University, managing editor of the International Journal of the Jurisprudence of the Family, and a member of the American Law Institute. Elizabeth A. Clark is Associate Director of the International Center for Law and Religion Studies at Brigham Young University. W. Cole Durham, Jr., is Director of the International Center for Law and Religion Studies at BYU Law School, President of the International Consortium for Law and Religion Studies (ICLARS), and a Co-Editor-in-Chief of the Oxford Journal of Law and Religion.