France legalized same-sex marriage today, making it the 14th country to do so. New Zealand approved marriage equality last week. As the U.S. Supreme Court decides the two marriage cases, one that could legalize same-sex marriage and one that could find the federal Defense of Marriage Act unconstitutional, it will be interesting if these actions by France and New Zealand (among others) will have any impact on the Court’s decision.
The issue of using foreign law to help guide constitutional analysis in the Supreme Court has been a hot topic with the justices, especially after Lawrence v. Texas (the case finding sodomy laws unconstitutional) was decided in 2003, and after a series of death penalty cases where some majority opinions highlighted what other countries did (especially those most similar to the US). For example, in Lawrence v. Texas, the court focused on how some European countries dealt with sodomy laws:
Of even more importance, almost five years before Bowers was decided the European Court of Human Rights considered a case with parallels to Bowers and to today’s case. An adult male resident in Northern Ireland alleged he was a practicing homosexual who desired to engage in consensual homosexual conduct. The laws of Northern Ireland forbade him that right. He alleged that he had been questioned, his home had been searched, and he feared criminal prosecution. The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights. Dudgeon v United Kingdom, 45 Eur. Ct. H. R. (1981) P 52. Authoritative in all countries that are members of the Council of Europe (21 nations then, 45 nations now), the decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization.
Will the Supreme Court do the same when discussing bans on marriage equality in the United States? Will the court point to the trend that more countries have legalized same-sex marriage or are now opening up their marriage laws?
The following video debate between Justice Scalia (the most vocal opponent to using foreign laws in constitutional analysis) and Justice Breyer (who supports the use in some limited ways) highlights the different points of view, and some of these arguments may make their way into the marriage opinions that are likely to be decided at the end of June.