The left often argues the U.S. must get with the rest of the world, that the U.S. is a backwater if we don’t. This argument is being made in the Supreme Court case over same-sex marriage by the former Dean of the Yale Law School who is also the former principle lawyer in Hilary Clinton’s State Department.
Professor Harold Koh and a handful of legal luminaries have told the Court the U.S. must join the “emerging global consensus” in favor of same-sex marriage and that same-sex marriage is about to sweep the world.
But is this true?
Law professors Lynn Wardle, Cole Durham, and 52 other legal scholars say “not so fast.” In a dueling brief, Wardle, Durham, and the rest point out that same-sex marriage is quite rare around the world. There is no “emerging global consensus.”
Only 17 of the 193 member states of the UN allow for same-sex marriage, and a court imposed only one of those. Wardle and Durham point out that 47 nations have constitutional provisions enshrining man-woman marriage, and more are coming.
Same-sex marriage proponents conclude such positions can only come from hatred or animus toward homosexuals. Wardle and Durham say no: “95 of the 176 states allowing only traditional marriage have decriminalized homosexual conduct. Eight-eight have affirmatively extended constitutional and/or legislative protections to LGBT individuals.”
Koh says the nations that have refused to adopt same-sex marriage are “anti-models”, those that a constitutional democracy like the US should not follow. Wardle and Durham say, in fact, “they are constitutional democracies that share our values of individual freedom.”
Wardle and Durham survey the global justice system and find that courts, both national and international, uphold man-woman marriage:
Twelve national and international tribunals in eleven countries have explicitly upheld male-female marriage as consistent with human rights. These include some of the jurisdictions with the earliest and strongest LGBT protections in the world. They are hardly backwoods courts or bastions of bigotry.
The courts and tribunals that have upheld man-woman marriage against claims of discrimination include the European Court of Human Rights, the UN Human Rights Committee, along with national courts in Germany, Austria, France, Spain, Finland, Italy, Ireland, Chile, and Colombia.
The professors chide Koh for only referencing two of these many decisions upholding man-woman marriage. They say, “Particularly notable is the repeated refusal by the European Court of Human Rights to mandate same-sex marriage,” and, “the European Court’s Grand Chamber declined to recognize a fundamental right to same-sex marriage.”
Wardle and Durham are keen for the High Court not to freeze the public discussion and argue that electoral and legislative resolutions and compromises result in greater stability. They say:
Only one country on the entire planet — Brazil — has mandated via its judiciary that same-sex couples across its nation have access to traditional marriage. If the US Supreme Court is concerned about being out of step with the world’s leading democracies, it couldn’t make a bigger mistake than becoming one of only two nations in the world to cut democracy off at its knees and force its judicial will upon the people.
Follow Austin Ruse on Twitter @austinruse