New York, March 4, 2013—Principles such as liberty, dignity, and equality are not unique to the United States, so the U.S. Supreme Court should look to the example of other liberal democracies as it considers a decision overturning Proposition 8, California’s ban on marriage for same-sex couples, Columbia Law School Professor Sarah H. Cleveland and Visiting Scholar Harold Hongju Koh argue in an amicus brief filed with the court Thursday.
Both Cleveland and Koh have extensive experience on global judicial and legislative developments regarding the rights of gay men and lesbians. Koh was legal adviser at the U.S. Department of State from 2009 until he stepped down earlier this year. Cleveland served as counselor on international law to Koh from 2009 to 2011. She is also the U.S. observer member of the European Commission for Democracy through Law, or the Venice Commission. She has written extensively on the Supreme Court’s use of international law in constitutional interpretation.
In their brief, the professors cite marriage equality in countries including Argentina, Belgium, Brazil, Canada, Colombia, Denmark, Iceland, Mexico, the Netherlands, Norway, Portugal, South Africa, Spain, and Sweden. They also note that in recent weeks both the U.K. and France have moved toward legislatively adopting same-sex marriage.
“This Court should consider the reasoning of authorities in other countries that have determined that it violates the fundamental rights of same-sex couples to exclude them from the institution of marriage,” the professors write. “Those decisions rest upon principles common to our own understanding of the rights protected under the Fourteenth Amendment, including the liberty to make fundamental choices for one’s own life free from government intervention, the dignity and worth of all persons, and equality under the law. Because Proposition 8 offends those fundamental principles, it violates our Constitution.”
“This is not a situation where we are contending that the United States is an outlier in the world regarding the recognition of full marriage rights for same-sex couples,” said Cleveland. “Many countries in the world—particularly illiberal countries—have not yet taken that step. But the clear global trend is in the direction of recognizing same-sex marriage, and the Court should be aware of this. Countries around the world are increasingly rejecting civil unions and domestic partnerships as unacceptable forms of ‘separate but equal’ discrimination. And no country in the world has bestowed full marriage rights and then taken them away, as Proposition 8 has attempted.”
Koh, now Sterling Professor of International Law at Yale, said: "All our brief does is recognize simple justice: that loving couples who spend their lives together should share equally in the status of marriage. Our Supreme Court should learn from other courts and legislatures, as they recognize the obvious denial of liberty and privacy that flows from penalizing certain couples by forcing them to accept a lesser status that claims to be separate but equal to genuine marriage."
Cleveland, the Louis Henkin Professor of Human and Constitutional Rights and Co-Director of the Human Rights Institute at the Law School, and Koh were joined on the brief by Duke University School of Law Professor Laurence R. Helfer and New York University School of Law Professor Ryan Goodman.