Same-sex marriage. Is there a ‘global consensus’ emerging?

21 Apr

Interesting point from a few legal scholars concerning International laws regarding same-sex marriage:

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 extendedconstitutional 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: theEuropean Court of Human Rights, the UN’s Human Rights Committee, and national courts in Germany, Austria, France, Spain, Finland, Italy (both theConstitutional 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.

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