Superior Court Urged to Consider Same-Sex Marriage Views Abroad

Towards the end of April, the Supreme Court will be hearing historical arguments about same-sex marriage from both sides. In the interim, advocates and opponents of same-sex marriage are urging the court to look abroad for guidance on legalizing same-sex marriage in the United States.

Two friend-of-the-court briefs have been filed, urging the justices to consider the same-sex marriage views abroad before deciding whether there should be a nationwide right for same-sex couples to marry in the U.S. While both briefs contend that there is something to be learned from other countries, they each have different goals.

One side says there is an "emerging global consensus among liberal democracies," which favor same-sex marriage. In contrast, the other side says that most of the world rejects same-sex marriage, and this includes nations that otherwise show their support for gay rights.

Both of the briefs are meant for one recipient: Justice Anthony M. Kennedy, who may be interested in looking at the laws of other nations more than any other member of the court. In the past, Justice Kennedy has looked at Supreme Court rulings of other nations involving the death penalty, harsh punishments for juveniles, and notably, gay rights.

The friend-of-the-court brief that is urging Justice Kennedy to rule in favor of same-sex marriage was filed by six widely respected American Law professors, one of which was Harold H. Koh, who formerly served as the State Department's lead attorney in the Obama administration.

The brief arguing against gay marriage was filed by Lynn D. Wardle, a law professor at Brigham Young University; it was filed on behalf of 54 experts in international law.

Despite different intentions, both briefs agree that roughly 20 countries allow same-sex marriage, including England, France, New Zealand, South Africa, Sweden, and Canada.

In the past, Justice Kennedy said that the opinion of the world community provides respected and significant confirmation of our own conclusions.