Same Sex Marriage Without Borders: The Foreign and Comparative Law Amicus Brief in Obergefell v. Hodges

By Noah B. Novogrodsky, Ruth N. Borenstein, and Marc A. Hearron*

The Supreme Court recently held in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), that the Due Process and Equal Protection clauses of the Fourteenth Amendment guarantee same-sex couples the right to marry, and to have their marriages recognized, throughout the United States. As detailed in an amicus brief filed on behalf of leading experts in the field of foreign and comparative law,¹ Obergefell is part of a global dialogue concerning the rights of same-sex couples to live free from discrimination and to enjoy equal access to the institution of civil marriage, with all of the status and rights it affords.

The amicus brief showed that a growing number of constitutional democracies that share common constitutional values with the United States have concluded that same-sex couples are entitled to equal marriage rights.² Many of those countries’ courts—like the South African Constitutional Court in Minister of Home Affairs v. Fourie 2006 (3) BCLR 355 (CC) (S. Afr.), and the Court of Appeal for Ontario in Halpern v. Canada (2003), 65 O.R. 3d 161 (Can. Ont. C.A.)— based their decisions on principles common to our understanding of rights guaranteed by the Fourteenth Amendment, including liberty, dignity, and equality. Like those courts, the Obergefell majority embraces a dignity-based reasoning and makes it a central tenet of constitutional interpretation. For example, after noting that "[c]hoices about marriage shape an individual’s destiny," Justice Kennedy averred that "[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices." 135 S. Ct. at 2599. And the opinion’s concluding passage proclaimed that the Constitution grants the petitioners’ request "for equal dignity in the eyes of the law." Id. at 2608.

As counsel for the amici, we filed this brief to share these developments and to provide the Court with a comparative perspective from nations with similar legal traditions that have confronted the same question. We argued that our Supreme Court does not stand alone and that it is only the latest high court in a constitutional democracy to consider whether same-sex couples have an equal right to enter into the institution of civil marriage.³ We also predicted that this decision would be carefully observed in other countries, as Lawrence v. Texas and other civil rights landmarks were before it. Consistent with this claim, there is some evidence that Obergefell is beginning to influence foreign states’ consideration of marriage equality and LGBT rights.⁴