International Law

Ca. Int'l Law Journal VOL. 23, NO. 2, WINTER 2015

BRIEF FOR FOREIGN AND COMPARATIVE LAW EXPERTS HAROLD HONGJU KOH, THOMAS BUERGENTHAL, SARAH H. CLEVELAND, LAURENCE R. HELFER, RYAN GOODMAN, AND SUJIT CHOUDHRY AS AMICI CURIAE IN SUPPORT OF PETITIONERS

INTRODUCTION AND SUMMARY OF ARGUMENT

This Court is not the first to consider whether a state may single out and penalize one class of people— same-sex couples—by excluding them from an essential social and civil institution—marriage. Many constitutional democracies with which we share common values have concluded that the exclusion of marriage rights for same-sex couples violates their constitutional principles. Whether by judicial decisions or legislation, these states have embraced marriage rights for same-sex couples based on constitutional principles common to the rights protected under the Fourteenth Amendment, including individual liberty, dignity, and equality.

Liberal democracies like ours have made steady and undeniable progress toward full marriage equality. Beginning in the 1980s and 1990s, when a number of European countries created registered partnerships, constitutional democracies have given same-sex couples some of the same rights afforded to married opposite-sex couples. Since 2001, twenty countries have embraced equal marriage throughout their jurisdictions for reasons that have persuasive force before this Court.

The reasoning of these states’ courts and legislatures provides a useful perspective that this Court should consider. As this Court recognized in Lawrence, fundamental principles such as "liberty," "dignity," and "equality" are not solely American, but rather universal, concepts whose interpretation by other leading constitutional courts can inform this Court’s understanding of issues. See Lawrence v. Texas, 539 U.S. 558, 572-573, 576-577 (2003). As Justice Breyer has noted, "the way in which foreign courts have applied standards roughly comparable to our own constitutional standards in roughly comparable circumstances," Knight v. Florida, 528 U.S. 990, 997 (1999) (Breyer, J., dissenting), may "cast an empirical light on the consequences of different solutions to a common legal problem," Printz v. United States, 521 U.S. 898, 977 (1997) (Breyer, J., dissenting).

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