Gay Marriage and Constitutional Comparativism

by Roger Alford

In the case of Andersen v. King County, the Washington State Supreme Court yesterday ruled that the state’s Defense of Marriage Act was not unconstitutional. The court’s majority opinion and the concurring and dissenting opinions are available here. I just wanted to offer a quick comment about comparativism. It is noteworthy that the court embraces living constitutionalism, but relies on the community standards of the United States. Here is a key excerpt:

We agree, as plaintiffs maintain, that marriage is an evolving institution. They point, for example, to changes regarding recognition of common law marriages and departure from the historical denial of the right for slaves to marry. They point out other changes related to marriage and personal privacy, for example, decriminalization of extramarital sex, abandonment of tort actions for interference by third parties, and elimination of stigma and legal barriers relating to illegitimate children. However, although marriage has evolved, it has not included a history and tradition of same-sex marriage in this nation or in Washington State. The vast majority of states historically and traditionally have contemplated marriage only as opposite-sex marriage, and the majority of states, including Washington, have recently reaffirmed this understanding and tradition. Federal decisions have found the fundamental right to marry at issue only where opposite-sex marriage was involved. Loving, Zablocki, and Skinner tie the right to procreation and survival of the race. Plaintiffs have not established that at this time the fundamental right to marry includes the right to marry a person of the same sex. As we have noted, however, several statutes and municipal codes provide protection to gay and lesbian persons. That some laws provide such protections show change is occurring in our society, but community standards at this time do no show a societal commitment to inclusion of same-sex marriage as part of the fundamental right to marry.

I reviewed the concurring and dissenting opinions and found no references to comparative experiences in other countries. There is, however, this interesting paragraph from Judge Downing in the decision below that was under review:

Just last year, the United States Supreme Court reaffirmed that same proposition in stating that ‘[a]s the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.’ In that case, which has obvious significance to the present one, the Court noted that the issue before it called for re-evaluation in the context of ‘an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.’ In the past two decades, there have been dramatic shifts in public attitudes toward homosexuality…. In addition to Lawrence, many courts as well as legislatures across the United States, Canada, and Western Europe have given new recognition to ‘gay rights’, including key developments in the area of same-sex marriage. This societal change, coupled with the sound proposition that the courts have a key role in identifying an ‘emerging awareness’ of the evolving parameters of individual liberty, make it entirely appropriate that these plaintiffs now bring before this court the issue of their right to marry.

Note that the Washington Supreme Court and the Superior Court both embrace living constitutionalism and an evolving understanding of the right to marry. But they disagree about the degree of societal change and the data points one looks to in determining societal change.

Thus far, the gay marriage cases have yet to present themselves as significant instances of the application of constitutional comparativism. The opportunities for comparison obviously are there, but it would seem courts are reluctant to seize them. Those judges who are voting against same-sex marriage are not inclined to reference comparative experiences, content to examine societal changes based on national experience. Those judges who are voting in favor of same-sex marriage are not referencing comparative experiences, perhaps because there is little in the experience abroad that favors an international majoritarian position to expand the institution of marriage. To the extent they do, they speak of the broader trends of expanding gay rights, rather than narrower trends regarding marriage.

It seems that with gay marriage we may be experiencing something akin to a reverse Roper. It is one thing for constitutional comparativists to argue that the United States is a laggard with respect to changing social norms and that our “aberrant” practices should fall into line with the prevailing views of the rest of the world. Comparativism presents itself as a tailwind that advances the ship forward consistent with the prevailing winds. In such cases judges may be looking around to see what others are doing and asking themselves, “Why are we the last to change?”

But it is quite another thing when advocates argue that the United States should be at the forefront of a movement for social change. Comparativism presents itself as an anchor that prevents the ship from moving away from its present position. In such cases judges may be looking around to see what others are doing and asking themselves, “Why should we be among the first to change?”

5 Responses

  1. Roger,

    I think your metaphor of comparativism as an anchor is quite apt, and one with which I fundamentally agree with. Recourse to comparative law is an excellent way to keep states in conformity (i) with the normative consensus of the larger community to which they belong to, e.g. the 50 federated states in the US, or the 46 member states of the Council of Europe and (ii) with the global community, if there is in fact a global consensus on an issue. Comparativism is not, in general, a good way to legitimately induce change when such consensus is lacking, particularly through the courts. You are also quite right to say that this approach presupposes the acceptance of a living constitutional model – which is, as far as I’m aware, controversial only in the US.

    As I gather, this has been a very bad month when it comes to gay marriage in the US courts. I wonder whether a better tactic for the proponents of gay equality in the US would be to pursue non-discrimination claims in respect to rights which are accessory to marriage but which are not an integral part of marriage as such, like alimony, pension and support, tenancy rights or the right to file a joint tax statement. This approach has had more success both before the European Court of Human Rights, in Karner v. Austria, and before the Human Rights Committee, in Young v. Australia. However, the formalistic, tiered approach to equality claims in US law, and the very weak form of rational basis review are a quite significant obstacle.

  2. Marko,

    I think you are absolutely right that non-discrimination claims are a useful “in-road” for presenting the gay marriage as an equality issue.

    I did some work on the Anderson case when it was in its early stages and one of the strategies the lead attorneys used was to go through the entire Washington code and list all the provisions in which gay couples not married might be discriminated against (such as rights of survivorship, alimony, child care, etc.). So this approach was taken on some level. But you are correct that the biggest obstacle to many plaintiffs, and certainly to the plaintiffs in this case, is failure to gain recognition as a “suspect class” for the purposes of review. That seems to be the whole game.

    I am not sure I totally agree with you that the “tiered” approach to equality claims in the US is necessarily more formalistic than other approaches employed overseas. On the surface, rational basis or strict scrutiny (with limited instances of intermediate scrutiny) seems very formulaic. But is this really so different than the margin of appreciation doctrine applied in the ECtHR? After all, when there is large consensus regarding a particular right, a member must show a very substantial reason for derrogation (like strict scrutiny). When there is little consensus, members enjoy a wider margin of appreciation (like rational basis). In application, the US review system is not so tiered but actually follows more of a continuum based in some part on the amount of consensus the court observes in society (how else could you explain the state’s failure in Lawrence to even win on rational basis?). See more on this here.

  3. Aaron,

    Yes, quite right – the margin of appreciation doctrine, even though reviled by some, does serve a very useful purpose when the European Court is dealing with issues in which law intersects with morality, by defining the proper amount of deference the European Court should give to the judgment of a particular state. The scope of the margin varies on the substantive area of law involved and on the extent of a European consensus on an issue (btw, I also deal with this in my forthcoming MJIL article on constitutional morality).

    But, as far as I can tell, it is still a significantly more fluid (and therefore less precise and determinate) instrument than the tiered review in the US. I accept your point that the application of the tiers in the US is more fluid than in theory, but still. Lawrence is actually not so good an example, as it did not just give rational basis more “bite”, but explicitly said that protecting majoritarian morality is not even a legitimate interest in the balancing (both in the opinions of Justice Kennedy and Justice O’Connor, with Justice Scalia being quite put off by that).

    I personally have a huge problem with that. Law and morals have been interconnected for millenia, and human rights law in particular is inseparable from morality. The more intellectually honest thing would be to face the problem head on, and say that changing morality has an influence, not that morality itself is irrelevant. If you compare Lawrence with the European Court’s decision in Dudgeon, you’ll see that the problem is not protecting morals, but in the permissible measures the state can take to do so. The issue there was proportionality, not the legitimacy of the aim as such.

    So, in the European context even the mildest form of inquiry, which doesn’t deal with any suspect class, has more bite than mere rational basis. The tiers are a problem to the emergence of any new class, based on changing morality. Their one advantadge is greater determinacy, but I personally don’t think that advantadge is worth it.

  4. Marko,

    I think we disagree regarding the Lawrence court’s use of “morals.” In Lawrence, the court didn’t reject the idea that majoritarian morals were important (indeed, it seems to confirm this when it references the ECHR), but rather that morality cannot be the sole reason to uphold the law. I think these are two different things. In addition, although human rights law may be inseperable from morality, as soon as you start asking the question, “Whose morality?” things get complicated. I think the margin of appreciation doctrine itself, in some respects, is a failure to “face the problem head on” in the sense that it dodges problems when groups seem too much in opposition.

    The Lawrence decision, in my mind, echoes the sentiment in Romer that hatred of a group simply because that group exists cannot be a rational basis for discriminating against them whether it is based on morality or not. 517 U.S. 631-32. Again, this is not saying morality is irrelevant, just that it is not sufficient alone. How is this less intellecutally honest than the ECtHR and margin of appreciation? After all, you are coming from a standpoint of changing moral attitudes and an evolving interpretation of a treaty; there is a slight difference between this and how a constitution (which is not a treaty and does not have sovereignty concerns) is interpreted.

  5. Could it be – and I am expresssing no firm opinion here – that constitutional comparativism fails to figure significantly in gay marriage cases simply because the issue is not governed by constitutional law elsewhere, and because there is accordingly no material for comparison?

    To be sure, there are many countries that now know the institution of (some form of) gay marriage, but this has, to the best of my knowledge, always been done simply by statute, not by any exercise in constitutional interpretation. In fact, the German Federal Constitutional Court has said explicitly that the form of gay legal partnership created by statute was not ‘marriage’ in the sense of the constitution, and that there was no constitutional right to any such institution, but that the legislator was nevertheless entitled to establish it as a different concept.

    Again, I admit that many politicians tended to cast the issue in terms of human rights, but this was very largely a political, as opposed to a legal, point.

    The British government even argued that the institution of the civil partnerships was required under the ECHR, but Article 12 ECHR would seem to preclude any such claim (‘Men and women of marriageable age have the right to marry and to found a family according to the national laws governing the exercise of this right.’).

    So, my guess would be that even the most progressive US judges would have a hard time arguing that gay marriage could be established as a constitutional requirement on the strength of constitutional comparativism.

    But my knowledge in this area is hazy at best, so this is not a concluded view.

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