Invoking Foreign Precedent: A Dead End for Marriage Equality?

Peter Dunne 

Over last the last week, there has been considerable discussion about the movement for marriage equality.  An interesting, but rarely addressed question is the role that foreign precedent might play should any of the current live actions make it to the Supreme Court.

Lawrence v Texas is obviously one of the most important federal court decisions for the LGBT movement.  In his majority opinion, Justice Kennedy struck down Texas’ same-sex sodomy law as violating both the Due Process and Equal Protection Clauses of the Fourteenth Amendment.  A major criticism of Lawrencewas that it relied too heavily on foreign precedent, particularly the decisions of the European Court of Human Rights.  In his decision, Justice Kennedy makes reference to cases such as Dudgeon v United Kingdom, both to question public attitudes towards homosexuality in 1986 and to show how Western Thought had evolved in the intervening years.

At the time, many progressive activists welcomed the reference to foreign case law, particularly as it highlighted how comparatively extreme U.S.  sodomy laws appeared to be.  In the recent case of Schalk and Kopf v Austria, however, the European Court of Human Rights held that the Convention does not currently recognize a right to same-sex marriage.  The court reasoned that the debate on marriage equality is still an active political question and should be left to each member state to apply its “own visions.”  Although it did not say so in as many words, the Court was effectively removing itself as an arbiter in this particular battle for LGBT rights.

Should either the DOMA or Prop 8 litigation make it to the Supreme Court, it will be interesting to see whether Justice Kennedy makes reference to Schalk and Kopf.  Given the emphasis he placed upon Dudgeon in Lawrence, it appears he has little choice, particularly if he wants to avoid the charge of inconsistency.  And what significance will he give this decision?  Much like Dudgeon evidenced changing attitudes towards anti-sodomy laws, Schalk and Kopf suggests a general consensus that the marriage question is best left to the political process.

Of course, such an argument is not necessarily fatal to the claims of marriage advocates. Indeed, lawyers for GLAD are currently arguing that the appropriate political process has already taken place in both Massachusetts and Connecticut and that it has been unconstitutionally short circuited by DOMA.  But the fact remains that Schalk and Kopf is not a great precedent if you are looking for foreign support.

The irony is that, in 2003, Justice Kennedy probably did not need to invoke foreign precedent to justify striking down sodomy laws.  By that time, there was clear evidence of a consensus against criminalizing same sex intercourse.  Similarly, there was ample US based material to suggest that Western Thought in 1986 was not as clear-cut as Chief Justice Burger expressed it to be.  Advocates of marriage equality must now wait to see what impact, if any, the recent ECHR jurisprudence will have on the possibility of victory in the Supreme Court.

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