WASHINGTON DC, March 29 (C-FAM) Oral arguments were heard this week in the U.S. Supreme Court on the matter of homosexual marriage. A few dozen very interesting friend of the court briefs have been submitted by both sides of the question.
An ongoing debate in the United States is whether the Court should take into consideration the legal practices and opinions of foreign courts and international bodies. In recent years the Supreme Court has cited foreign courts and new norms, particularly in the Lawrence v. Texas decision that Constitutionlized homosexual sodomy, and also the in the Roper v. Simmons decision that overturned the “juvenile” death penalty.
Conservatives on the bench, such as Antonin Scalia and Clarence Thomas, have dissented from this practice it the past, and new additions to the Court, John Roberts and Samuel Alito, have said before the U.S. Senate that they would oppose such notions.
In the current case before the Court on Proposition 8, which will decide whether the people of California were within their rights to place man-woman marriage in the California Constitution, claims of evolving international standards are being made.
Former Yale Law School Dean Harold Koh and his colleagues have submitted a brief claiming that national laws and therefore international norms are changing rapidly. “The global progression toward marriage equality began in the 1980s and 1990s, when a number of European countries created registered partnerships giving same-sex couples some of the same rights afforded to married, opposite-sex couples. Since, 2001 the legislatures of the Netherlands, Belgium, Spain, Norway, Sweden, Portugal, Iceland, Argentina, and Denmark have recognized that purportedly separate-but-equal institutions offer insufficient substitutes for full marriage rights.” The brief asserts that France and England are soon to follow suit.
On the other side of the question is a brief submitted by a number of Judges and law professors from around the world including the former president of the Slovakian Supreme Court, former Judges of the European Court of Human Rights, a former President of the Italian Constitutional Court and others.
In their brief they show that only a tiny number of states, no more than 15, have decided in favor of same-sex marriage and that overwhelmingly these countries came to this decision not through court imposition but through the democratic process.
The drafters insist, “Foreign law and practice cannot and should not determine the meaning of the U.S. Constitutional guarantees. But the vast experience in other countries is nevertheless instructive when considering whether…California’s decision to reserve marriage to opposite sex couples…could only have arisen from irrationality, ignorance, or rank prejudice.” Drafters point out that only “12 non-U.S. jurisdictions recognize same-sex unions as marriages” and that many more than that have decided in favor of man-woman marriage including Austria, the Czech Republic, Finland, France, Ireland, Slovenia, Switzerland, the United Kingdom, Australia, New Zealand Germany, Hungary and many others.
They also point out that international bodies and courts including the European Court of Human Rights and the UN Human Rights Committee have repeatedly upheld man-woman marriage.
