Gay Marriage and Constitutional Comparativism
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?”