One Reason Why Strong Pro-Gay Marriage Supporters Should Be Worried

Whether the United States and the States should authorize same-sex marriage, in my opinion, should remain a matter of federal legislative public policy, and of state constitutional law and/or legislative public policy. Therefore, I strongly oppose the thesis that the United States and/or the states as a matter of federal constitutional law are obliged to authorize same-sex marriages or their functional equivalents. I also oppose the repeal of DOMA (Defense of Marriage Act) by Congress, or its whole or partial nullification by the courts.

So what I would like now is call the readers’ attention an important matter bearing upon the future federal constitutional status of same-sex marriages, now sub judice in Hollingsworth v. Perry, No. 12-144, and United States v. Windsor; No. 12-307.

The matter in question is suggested by the Supreme Court’s opinion in Lawrence v. Texas, 539 U.S. 558, 573 (2003) . In this case the Court held that a Texas statute making it a crime for two person of the same sex to engage in certain intimate sexual conduct violated the Due Process Clause. The Court accordingly overruled Bowers v. Hardwick, 478 U.S. 189 (1986). Justice Kennedy, speaking for the majority (i.e., himself, and Stevens, Souter, Ginsburg, and Breyer), declared (bracketed matter added):

Of even more importance [referring to the famous Wolfenden Report of 1957, which lead to the repeal by the British Parliament of laws punishing homosexual conduct in 1967], 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) ¶ 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.

Given the heavy reliance in Lawrence upon the decision of the ECHR concerning private, consensual homosexual conduct, Justice Kennedy and the other sitting justices would now be remiss were they not to take into account in Hollingsworth v. Perry and United States v. Windsor recent relevant decisions of the European Court of Human Rights. That court has held that the right of men and women of marriageable age to marry and to found a family, as guaranteed by Article 12 of the Convention for the Protection of Human Rights and Fundamental Freedoms, was not violated by Austrian law that denied the legal possibility of same-sex marriage. Schalk and Kopf v. Austria, Application no. 30141/04, 24 June 2010 (final 22 November 2010) [ ]. That court also ruled that the denial of same-sex marriage by Austrian law did not constitute unreasonable discrimination in violation of Article 14 of the Convention, taken in conjunction with the requirement in Article 8, that there shall be no interference by public authority with the right of a person to respect for his private and family life unless such interference is in accordance with the law and is necessary in a democratic society of certain specified interests.

The ECHR in Schalk and Kopf observed:

27. Currently six out of forty-seven member States grant same-sex couples equal access to marriage, namely Belgium, the Netherlands, Norway, Portugal, Spain and Sweden.

28. In addition there are thirteen member States, which do not grant same-sex couples access to marriage, but have passed some kind of legislation permitting same-sex couples to register their relationships: Andorra, Austria, the Czech Republic, Denmark, Finland, France, Germany, Hungary, Iceland, Luxembourg, Slovenia, Switzerland and the United Kingdom. In sum, there are nineteen member States in which same sex couples either have the possibility to marry or to enter into a registered partnership (see also the overview in Burden v. the United Kingdom [GC], no. 13378/05, § 26, ECHR 2008).

 Significantly the Schalk and Kopf opinion explained in paragraph 46 that because “the Convention was a living instrument which had to be interpreted in present-day conditions, [the ECHR] had only used that approach to develop its jurisprudence where it had perceived a convergence of standards among member States.” The concurring opinion by Judge Malinverni (joined by J. Kovler) pointed out, moreover, “the Court cannot, by means of an evolutive interpretation, ‘derive from [the Convention] a right that was not included therein at the outset.’”

The Schalk and Kopf decision was recently confirmed by the ECHR in Affaire Gas et Dubois v. France, application 25951/07, 14 March 2012 [final June 15, 2012;{“itemid”:[“001-109571”]} ]. In this case, the court held that, under the circumstances, the refusal of French public authority to allow a woman to adopt her same-sex partner’s child was not discriminatory. The court noted in paragraph 66 that Schalk and Kopf held that the Convention did not impose on governments the obligation to open marriage to a homosexual couple.

Currently, among the forty-seven members of the Council of Europe, there are now eight countries that authorize same-sex marriages (adding Denmark and Iceland). An additional fourteen have a form of civil union or registered partnership for same-sex couples. Twenty nine countries do not legally recognize same sex marriages; and of these eight have constitutional bans.; see for list of member states of Council of Europe; accessed February 03, 2013).

Let us now consider the United States. Nine States and the District of Columbia have legalized the right to same-sex marriage. Ten States recognize some form of same-sex civil unions or its functional equivalent. Thirty States have constitutional bans on same-sex marriage, of which ten constitutionally even ban same-sex civil unions or their functional equivalent. Eleven States statutorily ban same-sex marriage. (See for a useful summary.) It seems to me that if the District of Columbia is included in the tally of relevant jurisdictions then we should also consider the two American commonwealths; i.e., Puerto Rico and that of the Northern Mariana Islands. Neither jurisdiction legally recognizes same-sex marriages. True, the Northern Mariana Islands has a population of about 54,000; but some members of the Council of Europe.also have relatively small populations (i.e., San Marino—c. 34,000, Lichtenstein—c. 36,000, Monaco—c. 33,000). It is also instructive that the Netherlands was the first member country of the Council of Europe to have legally recognized same-sex marriage when it did so in 2001; and Massachusetts was the first state to have done so in 2003—and that was by judicial fiat.

Since the European Court of Human Rights has held that the right to same-sex marriage is not a fundamental human right, the United States Supreme Court should give this fact great weight since the Supreme Court’s opinion in Lawrence had relied so heavily upon the decisions of the ECHR holding criminalization of consensual, private homosexual conduct as violating fundamental human rights.

Given the foregoing, strong pro-gay marriage supporters (i.e., those who maintain that the Supreme Court should rule that there is a federal constitutional right to same-sex marriage) should not be too surprised were the Court to disappoint them in this matter. In fact, they should be rather worried. Arguments proffered to show that it would be a good thing for American governments to recognize or authorize same-sex marriages may be insufficient to persuasively show that such governments are obliged to do so as a matter of federal constitutional law.

[originally posted December 10, 2012; updated February 4, 2013]