The international law case against gay marriage

On the controversial question of whether U.S. justices should refer to international law in deciding cases, liberals have tended to be more open to foreign influence while conservatives have opposed it. That's certainly been true on the Supreme Court, with Ruth Bader Ginsburg and Stephen Breyer emerging as leading proponents for giving judges leeway to consult international sources, and Antonin Scalia and John Roberts vigorously opposed. But a brief filed for the court's highly-anticipated upcoming decisions on gay marriage may indicate a shift in the traditional battlelines. 

The court will hear arguments this week  on the constitutionality of Proposition 8, California's ban on same-sex marriage, as well as the federal Defense of Marriage Act, and dozens of amicus curiae briefs have been filed.   One of them is authored byJeremy Rabkin, a conservative American legal scholar with strong views on the topic of national sovereignty, along with a group of mostly European jurists. They make the case that the experience of other countries bolsters legality of laws, like Proposition 8, which reserve the institution of marriage -- as opposed to the legal protections that go along with it -- for opposite-sex couples. They also argue that other countries have usually reserved decisions on issues like marriage for legislatures, rather than courts:

The overwhelming weight of international authority-including a majority of liberal western democracies with established traditions of concern for the rights of gays and lesbians-is that reserving the formal institution of "marriage" to opposite-sex couples while supporting same-sex couples through other rights and legal mechanisms is sound public policy. This authority confirms that differences among various national, state and federal jurisdictions on the subject are fully compatible with international norms. The accumulated wisdom reflected in the countless legislative, judicial and administrative judgments is based not on irrationality, ignorance, or animus toward gays and lesbians but on considered judgments about the unique nature and needs of same-sex couples and children. Of course, foreign law and practice cannot and should not determine the meaning of U.S. Constitutional guarantees. But the vast experience in other countries is nevertheless instructive when considering whether-as the Ninth Circuit has held-California's decision to reserve marriage to opposite-sex couples while at the same time extending the rights of marriage to same-sex couples could only have arisen from irrationality, ignorance, or rank prejudice. International experience contradicts the Ninth Circuit's conclusion. International practice confirms the wisdom of allowing legislative flexibility in the pace and structure of legal change.

Accordingly, most foreign jurisdictions have concluded that decisions on the culturally sensitive issues of marriage and marriage-like rights for same-sex couples should be reached through democratic processes based on careful policy making and compromise rather than through judicial mandates. National and international courts have overwhelmingly refused to trump the democratic process in the name of gay and lesbian rights when adjudicating claims analogous to those at issue here.

As Peter Spiro at the Opinio Juris blog notes, international arguments probably won't have much impact on the court's final decision.  But Rabkin's brief may be more interesting for what it says about willingness of conservative jurists to consider international precedent:

With their brief, conservatives may have conceded the threshold salience of international practices. The door can’t be completely shut on this material, whether the Court expressly acknowledges it or not. Once they’ve played the international law card themselves, conservatives can hardly cry foul next time it’s played against them. (Rabkin himself will have to lose the label “fantasy world“ when speaking of international law.) Perhaps conservatives have come to understand that they can win on this turf, too.

If there is a shift on this, I suspect the effect may be felt less in judges' decisions than in the political process for how they are selected. Even Breyer and Ginsburg are unlikely to use international precedent as a central factor in a decision and even Scalia has been more flexible on this than his public statements might indicate. But the issue has often come up as a major topic in confirmation hearings for judges and other legal officials. If we see more briefs like Rabkin's, it's going to be harder for lawmakers to argue that people like former State Department legal advisor Harold Koh are way outside the legal mainstream.

Incidentally, Koh, who stepped down from his State Department post in December,  has co-authored another brief in Proposition 8 case, arguing for striking down the law on the grounds that there's a global trend toward recognizing same-sex marriage.

NICHOLAS KAMM/AFP/Getty Image

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