Show Summary Details

Page of

PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). (c) Oxford University Press, 2015. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy).

Subscriber: null; date: 25 February 2017

Immodest Claims and Modest Contributions: Sexual Orientation in Comparative Constitutional Law

Abstract and Keywords

This article contends that the modest contributions of comparative law acquire enhanced force when the claims made by constitutional interpreters are themselves immodest. In the context of sexual orientation, constitutional arguments often assume a categorical, ‘always/everywhere’ tenor that exposes them to contestation on comparative grounds. It develops this claim by focusing on three issues: bans on lesbian, gay, and bisexual individuals from military service; the criminalization of same-sex sexual conduct; and relationship recognition for same-sex couples. The analysis uses US constitutional law as the primary point of departure.

Keywords: comparative law, sexual orientation, gays, military service, same-sex couples, United States constitutional law

I. Introduction

In a foundational 1999 essay, Professor Mark Tushnet outlined three frameworks through which to consider the contributions of comparative constitutional law: functionalism, expressivism, and bricolage.1 According to Tushnet, ‘Functionalism claims that particular constitutional provisions create arrangements that serve particular functions in a system of governance.’2 Expressivism, in contrast, looks more to the symbolic, rather than to the instrumental, aspects of constitutions: ‘According to the expressivist view, constitutions help constitute the nation, to varying degrees in different nations, offering to each nation's people a way of understanding themselves as political beings.’3 Finally, bricolage, a term borrowed from Claude Lévi-Strauss, takes up constitutional analogs from other nations without much (p. 1080) concern about justifying their selection or deployment.4 Tushnet does not claim that these perspectives are exhaustive. His taxonomy nonetheless provides a useful starting point to consider how comparative constitutionalism might illuminate rights relating to sexual orientation.

Tushnet does not indulge in hyperbole about the contributions of comparative constitutional law. As he acknowledges, his ‘claim is, in the end, rather modest: U.S. courts can sometimes gain insights into the appropriate interpretation of the U.S. Constitution by a cautious and careful analysis of constitutional experience elsewhere.’5 We share this assessment. Nevertheless, we contend that the modest contributions of comparative law acquire enhanced force when the claims made by constitutional interpreters are themselves immodest. In the context of sexual orientation, constitutional arguments often assume a categorical, ‘always/everywhere’ tenor that exposes them to contestation on comparative grounds. We develop this claim by focusing on three issues: bans on lesbian, gay, and bisexual (LGB) individuals6 from military service, the criminalization of same-sex sexual conduct, and relationship recognition for same-sex couples. We follow Tushnet in using US constitutional law as our primary point of departure, solely because we are most familiar with it.

We diverge from Tushnet's taxonomy in some respects. Tushnet describes functionalism as a means to examine how different constitutional provisions and arrangements serve similar functions in different legal systems. Through this inquiry, he suggests, it may be ‘possible to consider whether the U.S. constitutional system could use a mechanism developed elsewhere to perform a specific function, to improve the way in which that function is performed here.’7 Expanding the perspective slightly, we examine here how particular rules within legal and constitutional institutions (such as bans on open service by LGB people in the military or bans on same-sex marriage) have been justified in constitutional law by reference to the functions that those norms purportedly serve (such as national security or procreation). Put differently, we examine not only constitutional institutions, but also constitutional justifications.

We also depart from Tushnet's taxonomy in taking bricolage out of the conversation. Bricolage accurately describes how comparative constitutional law often works. However, we are not persuaded, as yet, that this framework has an independent normative justification. As Tushnet acknowledges, it has a random, ad hoc quality. We therefore focus on the functionalist and expressivist modalities of comparative constitutional interpretation. We believe that bans on gays from military service provide a particularly sharp instance of the functionalist modality, while bans on sodomy provide an equally sharp instance of the expressivist modality. In contrast, we believe that the relationship recognition cases demonstrate a confluence of functionalism and expressivism.

II. Military Service: Functionalism Ascendant

In the military context, a common legal problem across jurisdictions is how to balance the rights of gay servicemembers against the governmental interest in national security. Several courts have filtered this perceived conflict through constitutional or quasi-constitutional (p. 1081) frameworks; in doing so, they have made or met two interlocking ‘immodest’ claims. The first insists that courts should grant so much deference to decisions by the political branches regarding military affairs as to render those decisions effectively non-justiciable. The second asserts that courts should defer to the specific legislative or executive assessment that openly gay servicemembers significantly disrupt unit cohesion. Comparative analysis suggests both claims are unjustified.

The United States only recently lifted its so-called ‘don’t ask, don’t tell’ policy, which had barred openly LGB individuals from service in the US military.8 In late 2010, Congress enacted a bill permitting the executive branch to end the policy; in July 2011, the executive branch completed a Congressionally mandated certification process, which triggered the policy's repeal on September 20, 2011.9 While the US policy's demise thus came about principally through legislative and executive action,10 we feel our (admittedly juriscentric) intervention on comparative constitutional law should focus on how courts responded to the multiple lawsuits challenging the policy's constitutionality during the nearly two decades in which it was enforced.11 We contrast how federal appellate courts in the United States rejected constitutional challenges to ‘don’t, ask, don’t tell’ with how the European Court of Human Rights ruled in favor of military personnel challenging a similar ban in the United Kingdom.

(p. 1082) Federal appellate courts in the United States that directly addressed the constitutionality of ‘don’t ask, don’t tell’ all upheld the policy.12 In doing so, they adhered to both extreme claims described above. First, they relied heavily on the Supreme Court's statement in the 1981 Rostker v Goldberg case that ‘judicial deference … is at its apogee when legislative action under the Congressional authority to raise and support armies and make rules and regulations for their governance is challenged.’13 Courts also urged deference to the specific Congressional finding embodied in the legislation:

The presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.14

The first claim is ‘immodest’ because it effectively forecloses judicial review over core military functions. While the Rostker Court stated that ‘deference’ did not mean ‘abdication’,15 courts’ extreme degree of deference makes the distinction elusive.16 Civil rights claims that would almost certainly have succeeded outside the military context have received comparatively short shrift within it, as Rostker, which upheld a facial sex-based distinction, itself demonstrates.17

One danger of such extreme deference is that it leads courts to credit immodest claims made by the government to defend the policy. The Second Circuit Court of Appeals, for instance, relied heavily on a deference rationale in refusing even to consider a trial court's conclusion that the government's defense of ‘don’t ask, don’t tell’—and the Congressional findings supporting that defense—were irrationally and impermissibly rooted in anti-gay animus.18 The trial court had found ‘overwhelming evidence’ in the record that the government's ‘unit cohesion’ argument, for example, was merely a ‘euphemism for catering to the prejudices of heterosexuals’.19 The trial court had also observed that even assuming this prejudice could form a legitimate basis for public policy, no concrete or credible evidence supported the government's assertion that ‘don’t ask, don’t tell’ would protect or enhance the government's asserted interests.20

Reversing the trial court's judgment, the Second Circuit declined to engage in these inquiries. After expounding at length on the need for judicial deference to military-related Congressional findings, the court credited the government's defense of ‘don’t ask, don’t tell’ (p. 1083) without addressing the merits of the lower court's analysis. While the appellate court repeatedly noted the existence of Congressional testimony in support of the military's policy—and briefly quoted the statements of two witnesses—it failed to evaluate the testimony's content or quality.21

A closer look would have revealed that the testimony in support of the policy was vague and unsupported. For instance, the court cited General H. Norman Schwarzkopf, who testified: ‘I have experienced the fact that the introduction of an open homosexual into a small unit immediately polarizes that unit and destroys the very bonding that is so important for the unit's survival in time of war.’22 He further asserted that ‘in every case I am familiar with, and there are many, whenever it became known in a unit that someone was openly homosexual, polarization occurred, violence sometimes followed, morale broke down, and unit effectiveness suffered.’23 General Schwarzkopf provided no specifics that would have permitted verification of his claims that ‘immediate’ polarization occurred upon the introduction of an open homosexual or that effectiveness suffered in ‘every case with which [he was] familiar’—sometimes with ‘violence’. Given that he emphasized the existence of ‘many’ such cases, it should not have been difficult to name at least one. Despite these shortcomings, the Second Circuit and two other federal courts quoted and relied on his statements in upholding the ban on openly gay servicemembers.24

To see how a comparative perspective might chasten extreme claims regarding military deference and the purported harms of allowing openly LGB people to serve, consider the 1999 case of Lustig-Prean and Beckett v United Kingdom.25 In this case, the European Court of Human Rights held that the United Kingdom had violated servicemembers’ ‘right to respect for … private … life’26 under the European Convention on Human Rights by discharging them pursuant to a blanket ban on gays in the military.27 Several servicemembers with exemplary records brought suit. The government responded with versions of the two ‘immodest’ claims. According to the Court, the government first contended that ‘given the national security dimension to the present case a wide margin of appreciation was properly open to the State’.28 The government's proposed standard diverged substantially from the Court's normal practice in cases involving significant intrusions into private life, where states were typically afforded only a ‘narrow margin of appreciation’.29 The government then claimed

that the presence of known or strongly suspected homosexuals in the armed forces would produce certain behavioural and emotional responses and problems which would affect morale and, in turn, significantly and negatively affect the fighting power of the armed forces.30

The Court rejected both claims. Regarding military deference, the Court acknowledged that ‘When the core of the national security aim pursued is the operational effectiveness of the (p. 1084) armed forces, it is accepted that each State is competent to organise its own system of military discipline and enjoys a certain margin of appreciation in this respect.’31 However, it did not translate this deference into the extreme claim that the military was effectively immune from judicial review. To the contrary, the Court observed that ‘the national authorities cannot rely on such rules to frustrate the exercise by individual members of the armed forces of their right to respect for their private lives, which right applies to service personnel as it does to others within the jurisdiction of the State.’32 For the European Court of Human Rights, deference required actual rather than theoretical review.

Moreover, the Court rejected the claim that allowing openly gay servicemembers would lead to the decline of unit cohesion. At first glance, the government's position appeared to be well supported. The UK Ministry of Defence had established a Homosexuality Policy Assessment Team (HPAT), which published a report in 1996 that ran to approximately 240 pages. The report focused ‘upon the anticipated effects [open service by gays would have] on fighting power’.33 However, despite its length, the report provided no concrete evidence that open service by gay servicemembers would cause disruption. To the contrary, the HPAT report seemed to locate the problem not in the openly gay servicemembers but in their anti-gay colleagues. As the Court observed, the attitudes of servicemembers documented by the HPAT report ‘ranged from stereotypical expressions of hostility … to vague expressions of unease about the presence of homosexual colleagues.’34 The Court held that such ‘negative attitudes, cannot, of themselves, be considered by the Court to [justify] interferences with the applicants’ rights … any more than similar negative attitudes towards those of a different race, origin or colour.’35 So while the government claimed its policy rested on evidence rather than animus, its evidence was an anthology of animus. The Court noted that the HPAT report ‘did not, whatever its value, provide evidence of such damage in the event of the policy changing’.36 After this ruling, the UK military permitted gay individuals to serve openly. By the government's own account, the changes were implemented without disruption.37 By 2004, the Royal Air Force was actively recruiting gays and lesbians.38

Functionalism invites comparisons that undermine extreme instrumental claims, which tend to be empirical. Broadly, the US appellate cases on ‘military deference’ suggested that the sky would fall if courts meddled with decisions by the political branches pertaining to the military. This was, and remains, a testable claim—either military deference will undermine military readiness or it will not. The European Court of Human Rights decision in Lustig-Prean, and the United Kingdom's compliance with it, have shown that at least the British portion of the sky has not fallen. The decision and its aftermath have demonstrated that individual (p. 1085) rights relating to sexual orientation can be protected in the military in a manner that differs only in degree from how such rights are protected in civilian life. More specifically, the US appellate court cases on ‘don’t ask, don’t tell’ rested on the predicate that openly gay servicemembers would lead to the destruction of unit cohesion. Again, Lustig-Prean and the United Kingdom's resulting policy change have suggested that this position lacks support. While it is still too early to draw definitive conclusions on the effect of allowing openly LGB people to serve in the US military, preliminary reports indicate that unit cohesion has not suffered, much less been ‘destroyed’, in the months since the repeal of ‘don’t ask, don’t tell’; on the contrary, senior military officers have increasingly expressed confidence that the repeal has not and will not cause any meaningful disruption.39

Some supporters of ‘don’t ask, don’t tell’ have insisted, both before and after the policy's repeal, that the US experience is somehow so exceptional that the experience of other jurisdictions is irrelevant. Yet this, too, is an extreme claim. Many other military forces had already integrated on the basis of sexual orientation by the time the US repealed its ban. More to the point, US forces had already worked alongside those other integrated forces—including British forces—in joint missions.40 The British government in Lustig-Prean strove mightily to contend that the smooth integration that had occurred in other military forces was irrelevant, in part because that integration had been ‘relatively recent’. The Court rejected that claim, observing that ‘European countries operating a blanket legal ban on homosexuals in their armed forces are now in small minority’, and further noting that ‘even if relatively recent, the Court cannot overlook the widespread and consistently developing views and associated legal (p. 1086) changes to the domestic laws of Contracting States.’41 Now that more than a decade has passed, the ‘relatively recent’ defense has become even less tenable. It also bears note that the British government observed that countries which had ‘no legal ban on homosexuals were more tolerant, had written constitutions and therefore a greater tradition of respect for civil rights’.42 From a US perspective, this is a rather ironic distinction, as it suggests that countries like the United States with written constitutions should be more, not less, likely to integrate successfully.

III. Sodomy Cases: Expressivism Ascendant

The sodomy context appears more conducive to analysis through an expressivist lens rather than through a functionalist one. In the cases we examined, the governmental rationale for criminalizing consensual sodomy tended not to rest on some instrumental purpose, such as encouraging procreative sexual conduct. Rather, the state's justification was some version of ‘morality’. These constitutional claims about morality can be viewed as ‘expressivist’ because, in Tushnet's terms, they ‘offer to each nation's people a way of understanding themselves as a polity’.43

The expressivist claims can be immodest in two different directions, which we call universal-expressivist and parochial-expressivist. Universal-expressivist claims contend that the polity's constitutional norms conform to values which, if not ubiquitous, are at least transnational. Parochial-expressivist claims, in contrast, contend that only a nation's own mores should count in its constitutional jurisprudence.

Prominent examples of universal-expressivist claims in US constitutional law can be seen in Justice White's majority opinion and Chief Justice Warren Burger's concurring opinion in Bowers v Hardwick. Bowers was the 1986 Supreme Court case that rejected a constitutional privacy challenge to a sodomy statute.44 Elaborating on historical claims made by Justice White's majority opinion, Chief Justice Burger claimed that private homosexual conduct had been subjected to state intervention ‘throughout the history of Western civilization’, and that the ‘condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards’.45 His opinion quoted, with apparent approval, Blackstone's characterization of homosexual sex as an offense of ‘deeper malignity’ than rape.46 To protect this conduct within the ambit of fundamental rights jurisprudence, he argued, ‘would be to cast aside millennia of moral teaching’.47

In overruling Bowers 17 years later, the landmark case of Lawrence v Texas challenged many of Justice White's and Chief Justice Burger's unqualified claims.48 Writing for the Court, Justice Kennedy observed that ‘The sweeping references by Chief Justice Burger to the history of Western civilization and to Judeo-Christian moral and ethical standards did not take account of other authorities pointing in an opposite direction.’49 The Lawrence (p. 1087) Court made special note of the ruling by the European Court of Human Rights in Dudgeon v United Kingdom,50 which held that a Northern Ireland law criminalizing homosexual sodomy violated the European Convention's ‘private … life’ provision. Justice Kennedy noted that this ruling, rendered ‘almost five years before Bowers was decided’, contradicted ‘the premise in Bowers that the claim put forward was insubstantial in our Western civilization’.51

Justice Kennedy's use of comparative law drew intense criticism. Yet Kennedy's opinion was simply responding to a comparative claim made in the opposite direction. Justice White's majority opinion and Chief Justice Burger's concurrence in Bowers ‘opened the door’ to such analysis by making reckless claims about the uniformity with which homosexuality had been condemned in the Western tradition.

Justice Scalia's impassioned dissent in Lawrence avoided the force of this argument by maintaining that the use of comparative law by either side was illegitimate. He claimed that the Bowers majority did not in fact rely on international and comparative sources. To the contrary, Justice Scalia stated that Bowers had ‘rejected the claimed right to sodomy on the ground that such a right was not “deeply rooted in this Nation's history and tradition”.’52 Justice Scalia characterized the Lawrence majority's ‘discussion of these foreign views’ as ‘meaningless dicta’.53 At the same time, he found it to be ‘Dangerous dicta … since “this Court … should not impose foreign moods, fads or fashions on Americans”. ’54

Justice Scalia misapprehended the Bowers majority. Justice White's opinion clearly included foreign and international sources in his allusion to ‘this Nation's history and tradition’. White's historical discussion began with the claim that prohibitions on homosexual sodomy ‘have ancient roots’, citing a law review article.55 The cited page of the law review article reads as follows:

Current state laws prohibiting homosexual intercourse are ancient in origin. The earliest legal argument for outlawing homosexuality can be found in Plato's Laws. Plato believed that homosexuality had to be forbidden because it undermined the important Greek values of masculinity and procreation. While accepting Plato's reasoning, Judeo-Christian opposition to homosexuality derives from the legendary account in Genesis of the fire and brimstone destruction of Sodom and Gomorrah. The word sodomy is derived from Sodom. The Mosaic Law sets forth an absolute prohibition against homosexuality: ‘Thou shalt not lie with mankind as with woman kind; it is abomination.’56

Thus while Justice White's reliance on the ‘Judeo-Christian tradition’ and ‘millennia of moral teaching’ was less obvious than Chief Justice Burger's, it was nonetheless present in his conception of ‘the Nation's history and traditions’.

However utopian it may be, it is worth exploring Justice Scalia's parochial-expressivist claim, which rests not on a universal conception of morality, but on an isolationist one. It describes a fantasy in which the US Constitution both can and should be entirely divorced (p. 1088) from the rest of the world. It is important to take this view seriously, as other jurisdictions have embraced the parochial-expressivist view.

The Indian government put forward such a claim in the 2009 Naz Foundation v Union of India case.57 In Naz Foundation, the High Court of New Delhi in India struck down the nation's sodomy statute. It quickly dispensed with any ‘functionalist’ rationale for the statute, observing that although the government had ‘referred to the issue of public health and healthy environment, the affidavit has not set out elaborately the said defence.’58 The Court concluded that ‘resistance to the claim in the petition is founded on the argument of public morality’.59 In expounding on that ‘public morality’, the government did not rely on universal or Western moral values. To the contrary, the government lawyer asserted that ‘Social and sexual mores in foreign countries cannot justify de-criminalisation of homosexuality in India’.60 Indeed, the lawyer maintained ‘in the western societies the morality standards are not as high as in India’.61

As Professor Sujit Choudhry has pointed out, this nationalistic argument was rejected by using both a universalist and culturally specific conception of Indian law.62 Choudhry observes that comparative constitutional law was used to show that India would suffer if it clung to such a parochial conception of its position in the global order. At the same time, Choudhry observes that the arguments about Indian culture were also met with counter-arguments that relied solely on Indian constitutional culture, specifically the contention that one of the underlying themes in the Indian Constitution is ‘inclusiveness’.63 Choudhry long ago identified this dynamic as ‘dialogic constitutionalism’.64

We see the same rejection of the parochialism of Bowers in Lawrence. On the one hand, Justice Kennedy repudiated the parochialism of the Bowers formulation by noting that we shared values with ‘a wider civilization’.65 On the other hand, he also observed that developments within US constitutional law itself had undermined Bowers's holding. In a pincers movement, Justice Kennedy precluded the United States from either isolating itself from a broader global community or asserting that, even if it could, it possessed a uniform national heritage.66

(p. 1089) IV. Marriage and Relationship Recognition: Functionalism and Expressivism

With its 1989 Lov om registreret partnerskab (Registered Partnership Act), Denmark became the first country in the world to grant nationwide legal recognition to same-sex couples with nearly all of the benefits of marriage.67 Several of its northern European neighbors and other scattered jurisdictions followed suit in the 1990s, though the scope of these laws varied.68 In 2001, the Netherlands broke new ground, becoming the first country to legalize same-sex marriage.69 The global movement toward recognition of same-sex unions has since accelerated: At the time of writing, ten countries on four continents have enacted national legislation authorizing civil marriage for same-sex couples,70 with approximately 20 other countries granting nationwide legal recognition to same-sex couples in other forms.71

(p. 1090) In other countries, advances have occurred primarily at the regional and local level. Mexico City, for example, legalized marriage and adoption by same-sex couples in 2009,72 and in the United States, over one-third of the population now lives in a state or district that recognizes either same-sex marriages or a close equivalent, such as civil unions73—though the federal government continues not to recognize these relationships.74

While the increasing number of jurisdictions recognizing same-sex relationships invites comparative legal analysis, the diversity of legal processes, decisions, and provisions (p. 1091) surrounding same-sex relationship rights—not to mention underlying cultural and political differences75—mandates caution. Many readers—particularly in North America—may be quick to associate controversies over same-sex relationships with high-stakes court battles and bold judicial opinions on constitutional rights. Yet much of the worldwide progress for same-sex relationship recognition has occurred at the legislative level, often without overt prompting from courts.76 Moreover, in the numerous countries where constitutional litigation has helped to shape the development of same-sex relationship-recognition laws, the litigation and its political repercussions have not fit a uniform mold. Only in South Africa has a national court expressly ruled that the exclusion of same-sex couples from marriage violated the national constitution.77 In Canada, and to some extent Argentina, court rulings involving same-sex couples helped to produce momentum for national legislative action to legalize same-sex marriage, but no national court ruling ever held that the country's constitution mandated marriage equality.78 In Belgium and Mexico, national courts considered (and rejected) constitutional challenges to legislatively enacted laws that opened the door to same-sex marriage; a similar challenge to Spain's 2005 law permitting same-sex marriages has been pending for over six years in the country's Constitutional Court.79 Numerous other courts at the regional, national, and international level have mandated recognition of same-sex relationships for some purposes but have stopped short of requiring same-sex marriage. These include national constitutional courts of Brazil, Colombia, Hungary, Germany, and Slovenia, the European Court of Human Rights, , and the states of Vermont and New Jersey in the United States.80 In several countries, such as Italy, Venezuela, and Costa Rica, efforts to secure recognition of same-sex relationships have so far failed in both the national legislatures and the national courts.81

There is also broad variation among constitutional texts with respect to, among other things, equality, dignity, family, and marriage. In some countries, including Bolivia, Ecuador, Portugal, South Africa, and Sweden, national constitutions expressly prohibit discrimination based on ‘sexual orientation’82—though this is not necessarily a guarantee of equality for same-sex couples. In Ecuador, for example, the Constitution proscribes sexual-orientation (p. 1092) discrimination and guarantees rights for ‘stable, monogamous’ domestic partnerships, whether same-sex or heterosexual, while other provisions in the Constitution define ‘marriage’ as a heterosexual union and prohibit adoption by same-sex couples.83 Constitutions also differ in their definition and protection of the terms ‘marriage’ and ‘family’. Some texts, for instance, expressly ban recognition of same-sex marriage, while others guarantee marriage for heterosexual couples without an express ban on same-sex marriage; still others protect ‘marriage’ or the ‘family’ without defining the terms.84

Although the diversity among constitutional texts, courts, and cultures limits the possibilities of comparative constitutionalism, it does not foreclose meaningful comparative analysis. As in the military and sodomy contexts, the context of partnership rights is rife with incautiously broad arguments.85 However modest the contributions of comparative analysis may be, they can at least check such immodest claims. These immodest arguments are both functionalist and expressive.

1. Functionalism

The primary functionalist argument against same-sex marriage is that the purpose of marriage is procreation. Though the argument takes many guises, one of its most ‘immodest’ iterations rests on the notion that denying legal protections to same-sex couples (and their children) will somehow encourage procreative sex among heterosexuals, prevent a decline in a jurisdiction's birth rate, and help to ‘perpetuate the species’.86 We find these arguments implausible. In the words of former New York Chief Judge Judith Kaye, ‘no one rationally decides to have children because gays and lesbians are excluded from marriage’.87

Yet the arguments show no sign of disappearing. In upholding Washington State's ban on same-sex marriage, a plurality of the state Supreme Court concluded in 2006 that ‘the legislature was entitled to believe that limiting marriage to opposite-sex couples furthers procreation, essential to survival of the human race’.88 A Justice on the Connecticut Supreme Court argued in a 2008 dissenting opinion that the state legislature—which had already legalized civil unions for same-sex couples—could rationally conclude that opening marriage to gay couples ‘could have a significant effect on the number of opposite sex couples who choose to (p. 1093) procreate and raise children together’.89 In state and federal constitutional litigation in other states, including California, Maryland, and New York, opponents of same-sex marriage have filed briefs stressing that ‘society needs babies’.90 Two of these briefs—filed by a group of prominent family and legal scholars—point to low birth rates in Europe, warning that the ‘decline in the extent to which marriage is seen as a childbearing institution[] play[s] a clear role’ in the low fertility.91

When opponents of same-sex marriage make such specific causal claims about the experience of other countries, courts should examine that experience. Consider the frequent suggestion that same-sex relationship recognition has caused a crisis in European countries (particularly in the Netherlands and Scandinavia) by contributing to lower marriage rates and lower birthrates.92 We know of no reliable study demonstrating such a causal link. To the contrary, scholars have systematically debunked such claims.93 Perhaps more to the point, while US opponents of LGB rights point to a supposed depopulation crisis fueled by same-sex (p. 1094) marriage and partnership recognition in Western Europe, the countries themselves do not seem to share their alarm. In 2009 and 2010, Iceland, Norway, and Sweden expanded their protection of same-sex couples by replacing partnership laws with full marriage equality.94

With the passage of time and the growth in the number of jurisdictions recognizing same-sex couples, the field from which to gather evidence grows larger and more diverse. Courts and other decision-makers, moreover, should more carefully scrutinize the evidence on which opponents of same-sex relationship recognition tend to rely for their claims, particularly claims that on their face appear counterintuitive or far-fetched. The family and legal scholars noted above supported their claim that same-sex marriage would lead to a decline in heterosexual procreation with scholarly articles that did not actually discuss—or even mention—the legal recognition of same-sex relationships.95 Unfortunately, they are not the only litigants to misread, misinterpret, or misrepresent their sources in debates over same-sex relationship rights.

2. Expressivism

Defenders of bans on same-sex marriage or other forms of relationship recognition for same-sex couples also often rely on extreme expressivist claims. Those who defend differential treatment of same-sex unions, for example, frequently claim that the law's heterosexual definition of marriage simply reflects and expresses marriage's ‘biological’ foundation, or its otherwise ‘inherent’, ‘pre-legal’ nature. Insofar as these arguments rest on a conception of marriage as antecedent to law, comparative constitutional law may not appear capable, in the abstract, of offering much of a response. In practice, however, opponents of same-sex marriage typically defend characterizations of marriage's ‘inherently’ heterosexual nature by pointing to a ‘universal’ consensus among the world's legal traditions; to refuse to recognize same-sex marriage, they argue, is merely to adhere to globally shared values. Comparative constitutional analysis may play a modest but meaningful role in responding to these universal-expressivist justifications by unsettling the supposed empirical foundations for the anti-same-sex-marriage view.

Litigants and judges invoking theories of marriage's true ‘essence’ could more comfortably rely on empirical arguments in the years before any jurisdiction had authorized same-sex marriages. When the Attorney General of Canada argued in the early 1990s, for example, that the heterosexual definition of marriage was ‘fundamental to the very nature of the social institution’, she could bolster that claim with the observation that ‘no jurisdiction in the world’ had recognized same-sex marriage, and that ‘Even societies in which homosexuality has been accepted make a clear distinction between heterosexual marriage and the society's recognition and acceptance of homosexual relationships.’96 Likewise, when New Zealand defended its refusal to recognize same-sex marriage in proceedings before the United Nations Human (p. 1095) Rights Committee several years later, it could support its position that marriage was ‘inherent[ly]’ heterosexual by noting that ‘all other States parties’ to the International Covenant on Civil and Political Rights had defined the institution as ‘open only to individuals of opposite sexes.’97

With the advent of legal same-sex marriage and the spread of partnership laws, such categorical claims must be retired. Nonetheless, those who oppose legal recognition of same-sex unions have not significantly adjusted their sweeping rhetoric. In the ongoing federal constitutional challenge to California's prohibition of same-sex marriages, for example, the defendants have argued that the heterosexual definition of marriage reflects not prejudice, but an ‘undeniable biological reality’, and that ‘the existential purpose of marriage in every society is, and has always been, to regulate sexual relationships between men and women.’98 At a January 2011 hearing before a federal appeals court, the attorney defending the same-sex marriage ban repeatedly claimed that marriage was universally understood to include only cross-sex couples; for example, he argued (in a universal-expressivist register that also sounded in a functionalist one) that ‘The key reason that marriage has existed at all in any society and at any time is that sexual relationships between men and women naturally produce children.’99

In Mexico, where the National Supreme Court of Justice recently upheld Mexico City's 2009 marriage equality law, one of two dissenting Justices insisted that ‘the concept and structural elements’ of marriage ‘respond to a defined reality with concrete biological and above all anthropological foundations’.100 There is an ‘international consensus’, the Justice argued, ‘that only a man and a woman can form a marriage’; to hold otherwise, he insisted, would be ‘to alter the essence of things’ and ‘to distort’ marriage's ‘nature’.101 Similarly categorical claims appeared in a decision from the Supreme Court of Costa Rica in 2006. Rejecting a constitutional challenge to the country's ban on same-sex marriage, the Court's majority emphasized the ‘biological’ roots of the family, and claimed that an ‘anthropological’ analysis of marriage as it had existed ‘throughout human history’ and ‘through the present’ reveals that ‘marriage and the family have always had a heterosexual composition in all human civilizations’.102

As in the context of sodomy laws, comparative constitutional analysis can discipline carelessly broad statements about ostensibly universal values that societies express through bans on same-sex relationship recognition. This is not merely a question of counting up the (p. 1096) jurisdictions that have opened the door to same-sex relationship recognition (though that sort of ‘nose counting’ may also serve a useful, albeit limited, purpose), but also of engaging with the reasoning of foreign constitutional courts. Courts across the globe, including in Argentina, Belgium, Colombia, Costa Rica, Germany, Hungary, Italy, Mexico, New Zealand, Portugal, Slovenia, South Africa, and the United Kingdom, and over a dozen jurisdictions within the United States and Canada, have grappled with the definition and meaning of marriage and the possibility of legal recognition for same-sex couples. A growing number of these courts have offered compelling reasons to reject the claim that marriage or other legal protections can or must be limited to heterosexual couples.103

Courts and advocates cannot be faulted for turning to these decisions for information and guidance when confronted with claims that marriage must, always and everywhere, mean one thing. Nor is this a question of cherry-picking: we do not dispute that decisions hostile to same-sex relationship rights may also form part of the global conversation. Indeed, what we urge in response to many of the ‘immodest’ claims of same-sex marriage opponents is a greater recognition that the meaning, definition, and scope of relationship rights and marriage are contestable and increasingly contested.

As in the sodomy context, objections to legal recognition of same-sex couples have relied not only on purportedly ‘universal’ values, but also national and local values. And like universal-expressivist arguments, parochial-expressivist arguments are often couched in inflexibly categorical terms.

In one variation of the parochial-expressivist opposition to same-sex marriage, litigants and judges have appealed to national religious culture, arguing that legal recognition of same-sex couples would necessarily infringe on the religious convictions held by the majority of a country's people. In a 2008 Spanish case, a local judge who objected to a same-sex couple's marriage application brought an unsuccessful challenge before the country's Constitutional Court. The judge argued that the 2005 legalization of same-sex marriage ‘contravened not only the Catholic Church's heterosexual conceptualization of marriage and the definition of marriage provided in the Dictionary of the Royal Academy of the Spanish Language’, but also various provisions of the Spanish Constitution. More specifically, the judge claimed that the law unconstitutionally disregarded the religious beliefs of the Spanish people in violation of constitutional guarantees of equality and religious freedom.104 Opponents of Belgium's same-sex marriage law made similar claims in court, unsuccessfully.105

We see nothing extreme in asking a court to take account of a national or state culture; in fact, such an accounting is often a proper component of constitutional analysis. To argue, however, that affording legal recognition to same-sex couples will necessarily infringe on the religious freedom of those who oppose such recognition—such that the rights of same-sex couples must categorically be denied—does strike us as overbroad. It is also a testable claim, given the increasing number of jurisdictions that recognize both religious freedom and same-sex partnerships or marriage. It therefore invites a careful comparative analysis.

(p. 1097) Indeed, the invitation to engage in comparative inquiries is often explicit, as those who appeal to national or local value (religious or otherwise) to oppose the rights of same-sex couples do not necessarily refrain from their own reliance on foreign experience and judgment. In Mexico, where the Supreme Court recently upheld a Mexico City law allowing same-sex couples to marry and adopt children, dissenting Justice Aguirre Anguiano struggled to find a balance between a limited comparative inquiry and a proper respect for national values. Although he cited a Danish study of adopted children to support his position that the Mexican Constitution prohibited adoption by same-sex couples, he also commented that ‘obviously the Danish do not resemble us Mexicans much’, adding that ‘they are a peculiar people’ and that ‘those Scandinavian countries are markedly different from us’.106 Justice Aguirre Anguiano's trouble in articulating a coherent position with respect to Denmark is telling. The widespread nature of the developments and controversies surrounding the rights of same-sex couples makes it increasingly difficult—if not impossible—for constitutional interpreters to pretend that they can close their eyes completely to foreign law and experience.

V. Conclusion

Interpreters who use comparative law are sometimes criticized for permitting judges too much discretion. Chief Justice Roberts framed the critique well in his confirmation hearings:

In foreign law you can find anything you want. If you don’t find it in the decisions of France or Italy, it's in the decisions of Somalia or Japan or Indonesia or wherever. As somebody said in another context, looking at foreign law for support is like looking out over a crowd and picking out your friends. You can find them, they’re there. And that actually expands the discretion of the judge. It allows the judge to incorporate his or her own personal preferences, cloak them with the authority of precedent because they’re finding precedent in foreign law, and use that to determine the meaning of the Constitution. I think that's a misuse of precedent, not a correct use of precedent.107

The ‘other context’ Justice Roberts was speaking of was that of legislative history, in which it is often said that jurists can ‘look out over a crowd and pick out their friends’.108 Yet the analogy breaks down here, as it is seldom stated (to our knowledge) that ‘no legislative history supports the position’ when a great deal of legislative history does. In the comparative context, however, there is a tendency to make ‘always/everywhere’ claims that implicitly contend that no other jurisdiction has gone the other way. Put differently, to ‘look out over a crowd and pick out your friends’ is a perfectly legitimate exercise when raised to counter the immodest argument that one has no friends at all.

Bibliography

American Bar Association Section of Family Law, ‘A White Paper: An Analysis of the Law Regarding Same-sex Marriage, Civil Unions and Domestic Partnerships’ (2004) 38 Family Law Quarterly 339Find this resource:

    M.V. Lee Badgett, When Gay People Get Married: What Happens When Societies Legalize Same-Sex Marriage (2009)Find this resource:

      Katharina Boele-Woelki and Angelika Fuchs (eds), Legal Recognition of Same-Sex Couples in Europe (2003)Find this resource:

        John C. Caldwell and Thomas Schindlmayr, ‘Explanation of the Fertility Crisis in Modern Societies: A Search for Commonalities’ (2003) 57(3) Population Studies 241Find this resource:

          Sujit Choudhry, ‘Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation’ (1999) 74 Indiana Law Journal 819Find this resource:

            William N. Eskridge Jr and Darren R. Spedale, Gay Marriage: For Better or for Worse? What We’ve Learned from the Evidence (2006)Find this resource:

              Patrick Festy, ‘Looking for European Demography, Desperately?’, Paper presented at the Expert Group Meeting on Policy Responses to Population Ageing and Population Decline in New York, October 16–18, Population Division, Department of Economic and Social Affairs, United Nations, 2000Find this resource:

                Suzanne B. Goldberg, ‘Open Service and Our Allies: A Report on the Inclusion of Openly Gay and Lesbian Servicemembers in US Allies’ Armed Forces’ (2011) 17 William and Mary Journal of Women and Law 547Find this resource:

                  International Commission of Jurists, Sexual Orientation, Gender Identity and Justice: A Comparative Law Casebook (2011)Find this resource:

                    Sunil Khilnani, Vikram Raghavan, and Arun Thiruvengadam (eds), Comparative Constitutionalism in South Asia (2010)Find this resource:

                      Claude Lévi-Strauss, The Savage Mind ([1962] 1966)Find this resource:

                        Esteban Restrepo-Saldarriaga, ‘Advancing Sexual Health through Human Rights in Latin America and the Caribbean’, Draft manuscript, 2011 (on file with authors)Find this resource:

                          Macarena Sáez, ‘Same-sex Marriage, Same-sex Cohabitation, and Same-sex Families Around the World: Why “Same” is so Different’ (2011) 19 Journal of Gender, Social Policy and the Law 1Find this resource:

                            Edward Stein, ‘The “Accidental Procreation” Argument for Withholding Legal Recognition for Same-Sex Relationships’ (2009) 84 Chicago-Kent Law Review 403Find this resource:

                              ‘Survey on the Constitutional Right to Privacy in the Context of Homosexual Activity’ (1986) 40 University of Miami Law Review 521Find this resource:

                                Mark Tushnet, ‘The Possibilities of Comparative Constitutional Law’ (1999) 108 Yale Law Journal 1225Find this resource:

                                  United Nations High Commissioner for Human Rights, ‘Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity’, UN Doc A/HRC/19/41, November 17, 2011Find this resource:

                                    United States Department of Defense, ‘Report of the Comprehensive Review of the Issues Associated with a Repeal of “Don’t Ask, Don’t Tell” ’, 2010Find this resource:

                                      Patricia Wald, ‘Some Observations on the Use of Legislative History in the 1981 Supreme Court Term’ (1983) 68 Iowa Law Review 195Find this resource:

                                        Ohlsson-Wijka, ‘Sweden's Marriage Revival: An Analysis of the New-millennium Switch from Long-term Decline to Increasing Popularity’ (2011) Population Studies 1Find this resource:

                                          Robert Wintemute and Mads Andenæs (eds), Legal Recognition of Same-Sex Partnerships: A Study of National, European and International Law (2001)Find this resource:

                                            Notes:

                                            (1) Mark Tushnet, ‘The Possibilities of Comparative Constitutional Law’ (1999) 108 Yale Law Journal 1225ff.

                                            (2) Ibid 1228.   

                                            (3) Ibid.

                                            (4) Ibid 1229 (citing Claude Lévi-Strauss, The Savage Mind ([1962] 1966), 16–17).

                                            (5) Ibid 1228.

                                            (6) We confine our analysis to lesbians, gay men, and bisexuals, rather than extending it to include transgender individuals. The challenges facing transgender individuals, while crucial, are too complex and distinct to be covered in an intervention of this length. For the sake of simplicity, moreover, we use the word ‘gay’, in addition to the term LGB, to refer to lesbians, gay men, and bisexuals. On gender in the Constitution, see Chapter 19.

                                            (7) Tushnet (n 1), 1228.

                                            (8) Don’t Ask, Don’t Tell Repeal Act of 2010, Pub L 111-321, December 22, 2010, authorizing repeal of 10 USC §654.

                                            (9) US Department of Defense, ‘Repeal of “Don’t Ask, Don’t Tell” (DADT): Quick Reference Guide’, October 28, 2011, available at 〈http://www.defense.gov/home/features/2010/0610_dadt/Quick_Reference_Guide_Repeal_of_DADT_APPROVED.pdf〉; see also n 10 (discussing events leading to repeal).

                                            (10) This is not to say that litigation was irrelevant to the repeal process. While the impact of judicial rulings is difficult to assess, recent rulings may have increased pressure on the political branches to jettison the ban. In early October 2010, for instance—less than three months before Congress enacted the repeal bill—a federal district court held that ‘don’t ask, don’t tell’ was unconstitutional. See Log Cabin Republicans v United States 716 F Supp 2d 884, 888 (CD Cal 2010). The Ninth Circuit Court of Appeals issued a stay of the lower court's ruling on October 20, 2010. See Log Cabin Republicans v United States 2010 WL 4136210 (9th Cir October 20, 2010) (No 10-56634). Much of the debate over repeal took place in the shadow of this litigation; indeed, the Secretary of Defense alluded to the litigation in late November when he urged Congress to move forward with its repeal legislation. See Liz Halloran, ‘Gates To Senate: End “Don’t Ask” Before Courts Do’, NPR, November 30, 2010, available at 〈www.npr.org/2010/11/30/131697322/pentagon-study-dismisses-risk-of-openly-gay-troops〉. In July 2011, many months after Congress approved the repeal bill—but before the executive's certification process was complete—the Ninth Circuit lifted its earlier stay, and then, a week later, re-issued the stay in part. See Log Cabin Republicans v United States 2011 WL 2982102 (9th Cir July 15, 2011) (No 10-56634). One week after this confusing set of orders, the executive branch certified the repeal. See also International Commission of Jurists, Sexual Orientation, Gender Identity and Justice: A Comparative Law Casebook (2011), 123, available at 〈http://www.icj.org/dwn/database/Sexual%20Orientation,%20Gender%20Identity%20and%20Justice-%20A%20Comparative%20Law%20Casebook[1].pdf〉 (observing, with references to Australia, Canada, and the United States, that ‘The impetus for legislative reform [of anti-gay military policies] has often originated in judicial or quasi-judicial processes’); US Department of Defense, ‘Report of the Comprehensive Review of the Issues Associated with a Repeal of “Don’t Ask, Don’t Tell”’, 2010, 90 (noting that ‘In Germany and Australia, national defense leaders changed their [anti-gay military] policies to head off adverse outcome[s] in pending court challenges’ (footnote omitted)).

                                            (11) Prior to Congress's 1993 enactment of the ‘don’t ask, don’t tell’ statute, openly LGB individuals were barred from military service under a Department of Defense directive declaring homosexuality to be ‘incompatible with military service’. See US Department of Defense, ‘Report of the Comprehensive Review’ (n 10), 20–1 (summarizing legal prohibitions on military service by openly LGB individuals prior to the enactment of ‘don’t ask, don’t tell’). Courts rejected challenges to these earlier prohibitions as well. See eg Steffan v Perry 41 F3d 677 (DC Cir 1994).

                                            (12) See eg Able v United States 155 F3d 628 (2d Cir 1998); Thomasson v Perry 80 F3d 915 (4th Cir 1996). Servicemembers challenging anti-gay discrimination in the military won at least two victories before the Ninth Circuit Court of Appeals, but those decisions did not invalidate the military's anti-gay policies as a general matter. See eg Witt v Dep’t of Air Force 527 F3d 806 (9th Cir 2008); Watkins v United States Army 875 F2d 699 (9th Cir 1989).

                                            (13) 453 US 57, 70 (1981).

                                            (14) 10 USC §654.

                                            (15) Rostker 453 US at 70.

                                            (16) See eg Cook v Gates 528 F3d 42, 60 (1st Cir 2008) (rejecting a constitutional challenge to ‘don’t ask, don’t tell’, and explaining that ‘where Congress has articulated a substantial government interest for a law, and where the challenges in question implicate that interest, judicial intrusion is simply not warranted’).

                                            (17) See 453 US at 83; see also Goldman v Weinberger 475 US 503 (1986) (upholding Air Force regulation that prohibited a rabbi from wearing his yarmulke). The Supreme Court's deference to the military is not categorical. See Frontiero v Richardson 411 US 677 (1973) (striking down a facial sex-based distinction in a military benefits scheme). However, the Court did not raise the issue of ‘military deference’ in Frontiero, perhaps because the benefits scheme at issue did not relate to a core military function.

                                            (18) See Able 155 F3d 628.

                                            (19) Able v United States 968 F Supp 850, 858 (EDNY 1997).   

                                            (20) See eg ibid 859.

                                            (21) See Able 155 F3d at 635–6.   

                                            (22) S Rep No 103-112, at 280.   

                                            (24) See eg Able 155 F3d at 635; Thomasson 80 F3d at 929; Cook v Rumsfeld 429 F Supp 2d 385, 402 n 25 (D Mass 2006), affirmed sub nom Cook v Gates 528 F3d 42 (1st Cir 2008).

                                            (25) Lustig-Prean and Beckett v United Kingdom (1999) 29 EHRR 548.

                                            (26) Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No 5, entered into force September 3, 1953, Art 8.

                                            (27) See also Smith and Grady v United Kingdom (1999) 29 EHRR 548. The Smith judgment, which similarly addressed the United Kingdom's ban on gays in the military, was issued on the same day as Lustig-Prean. The Court reached the same conclusion in both Lustig-Prean and Smith regarding gay servicemembers’ right to respect for their private lives.

                                            (28) Lustig-Prean, para 70.   

                                            (30) Ibid para 47.

                                            (31) Ibid para 82.

                                            (33) Ibid para 47.

                                            (34) Ibid para 90.

                                            (36) Ibid para 92.

                                            (37) A Ministry of Defence Review, leaked to the press in 2000, reported ‘widespread acceptance of the new policy’, noting that ‘The change in policy has been hailed as a solid achievement’. Ben Summerskill, ‘It's Official: Gays Do Not Harm Forces’, The Observer, November 19, 2000, 5; cf Suzanne B. Goldberg, ‘Open Service and Our Allies: A Report on the Inclusion of Openly Gay and Lesbian Servicemembers in US Allies’ Armed Forces’ (2011) 17 William and Mary Journal of Women and Law 547, 556–7, 564–5, 568, 572–3, 579–82, 584–5.

                                            (38) See Matthew Hickey, ‘RAF in drive to recruit more gays’, Daily Mail, August 27, 2004, 27.

                                            (39) Recent statements from the top officer of the US Marine Corps, Commandant General James Amos, provide a striking example of how views on this issue are changing now that the repeal has taken place. General Amos, previously a staunch supporter of ‘don’t, ask, don’t tell’, made headlines in December 2010 when he suggested that the presence of openly gay troops on the battlefield would create a ‘distraction’ that could ‘cost Marines lives’. Gordon Lubold, ‘Marine chief: Repeal could cost lives’, Politico, December 14, 2010, available at 〈http://www.politico.com/news/stories/1210/46390.html〉. By late November 2011, two months after the repeal took effect, Amos was offering a different assessment: in an interview with the Associated Press, he called the repeal ‘a non-event’, stated that he was ‘very pleased with how it has gone’, and noted that he had seen no signs of disruption. Robert Burns, ‘Gay ban's repeal was a “a non-event,” Amos says’, Associated Press, November 28, 2011; see also ibid (describing a statement by a Defense Department spokeswoman that ‘implementation of the repeal of the gay ban is proceeding smoothly across the military’); Carol Ross Joynt, ‘Looking Back: The Anniversary of the Repeal of “Don’t Ask, Don’t Tell”’, December 21, 2011, available at 〈http://www.washingtonian.com/blogarticles/22002.html〉 (quoting a statement from the chairman of the Senate's Armed Services Committee that ‘We routinely ask military leaders whether they are experiencing any problems with the repeal, and so far they have not identified any incidents related to the repeal’).

                                            (40) The US Department of Defense reported in 2010 that its Working Group found that 35 of the United States’ partner nations in the North Atlantic Treaty Organization (NATO) and the International Security Assistance Force (ISAF) allow gays and lesbians to serve openly in the military. US Department of Defense, ‘Report of the Comprehensive Review’ (n 10), 89. At the time of the Report, only six nations in NATO and ISAF prohibited gays from serving openly (Bulgaria, Jordan, Poland, Turkey, United Arab Emirates, and the United States); the policies of two other nations (Republic of Macedonia, Singapore) were undetermined. Ibid. The Report accepted that a comparison between the US and foreign militaries, while ‘far from perfect’, was nevertheless ‘relevant to [the] assessment’ of how openly LGB servicemembers would affect the US military. Ibid. The research supporting the Report had focused in particular on Canada, the United Kingdom, and Australia, because those three countries, the Report explained, ‘are in many ways culturally similar to the United States, and their militaries are, like the U.S. military, all-volunteer forces and of similar size proportionate to their national populations. These nations also work closely with U.S. forces in international operations’. Ibid 90.

                                            (41) Lustig-Prean (n 25), para 97.

                                            (42) Ibid para 51.

                                            (43) Tushnet (n 1), 1228.

                                            (44) Bowers v Hardwick 478 US 186, 194 (1986), overruled by Lawrence v Texas 539 US 558 (2003).

                                            (45) Bowers 478 US at 196 (Burger CJ concurring).

                                            (46) Ibid 197 (quoting 4 W. Blackstone, Commentaries *215).

                                            (48) Lawrence v Texas 539 US 558 (2003).

                                            (49) Ibid 572.

                                            (50) ECtHR, Ser A no 45, 1981.

                                            (51) Lawrence 539 US at 573.

                                            (52) Ibid 598 (quoting Bowers 478 US at 193–4). Justice Scalia supplied the emphasis in this passage.

                                            (54) Ibid (quoting Foster v Florida 537 US 990 (2002) (Thomas J concurring in denial of certiorari)).

                                            (55) Ibid 192 (citing ‘Survey on the Constitutional Right to Privacy in the Context of Homosexual Activity’ (1986) 40 University of Miami Law Review 521, 525).

                                            (56) Ibid ‘Survey’, 525.

                                            (57) (2009) 160 DLT 277.

                                            (58) Ibid para 14.

                                            (60) Ibid para 24.

                                            (62) Sujit Choudhry, ‘How To Do Comparative Constitutional Law in India: Naz Foundation, Same Sex Rights, and Dialogical Interpretation’ in Sunil Khilnani, Vikram Raghavan, and Arun Thiruvengadam (eds), Comparative Constitutionalism in South Asia (2010).

                                            (63) Ibid 29.

                                            (64) Sujit Choudhry, ‘Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation’ (1999) 74 Indiana Law Journal 819ff.

                                            (65) Ibid 560.

                                            (66) Our examples from the United States, Europe, and India are not meant to suggest that the invalidation of sodomy laws is a universal phenomenon. While such laws have been repealed or declared invalid throughout Europe and in most countries in the Americas, 76 nations around the world still criminalize private, consensual same-sex sexual conduct. See UN High Commissioner for Human Rights, ‘Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity’, UN Doc A/HRC/19/41, November 17, 2011, paras 40–4.

                                            (67) Law no 372 (June 7, 1989) (Denmark); see William N. Eskridge Jr and Darren R. Spedale, Gay Marriage: For Better or for Worse? What We’ve Learned from the Evidence (2006), 58 and n 43, 259; Ingrid Lund-Andersen, ‘The Danish Registered Partnership Act’ in Katharina Boele-Woelki and Angelika Fuchs (eds), Legal Recognition of Same-Sex Couples in Europe (2003), 13ff, 215. More limited forms of same-sex partnership recognition had been approved in the Netherlands in 1979, Denmark in 1986, and Sweden in 1987. See Robert Wintemute, ‘Conclusion’ in Robert Wintemute and Mads Andenæs (eds), Legal Recognition of Same-Sex Partnerships: A Study of National, European and International Law (2001), 759–61.

                                            (68) See Eskridge and Spedale (n 67), 43–89; Wintemute (n 67), 761–2; Boele-Woelki and Fuchs (n 67), (Appendix) 215–310.

                                            (69) Wintemute (n 67), 761; Boele-Woelki and Fuchs (n 67), (Appendix) 231.

                                            (70) These countries are Argentina, Belgium, Canada, Iceland, the Netherlands, Norway, Portugal, South Africa, Spain, and Sweden. See Law no 26.618 (July 21, 2010) (Argentina); Loi ouvrant le mariage à des personnes de même sexe et modifiant certaines dispositions du Code civil (February 13, 2003) (Belgium); Civil Marriage Act (July 20, 2005) (Canada); Law no 65 (June 22, 2010) (Iceland); Law of 21 December 2000 amending Book 1 of the Civil Code in connection with the opening of marriage for same-sex couples (Netherlands); Law no 53 (June 27, 2008) (Norway); Law no 9/2010 (May 31, 2010) (Portugal); Law 13/2005 (July 1, 2005) (Spain); Act No 17 (November 29, 2006) (South Africa); Law 2009:260 (April 1, 2009) (Sweden); see also Macarena Sáez, ‘Same-sex Marriage, Same-sex Cohabitation, and Same-sex Families Around the World: Why “Same” is so Different’ (2011) 19 Journal of Gender, Social Policy and the Law 1 ff; Paul Axel-Lute, ‘Same-Sex Marriage: A Selective Bibliography of the Legal Literature’, February 17, 2011, available at 〈http://law-library.rutgers.edu/SSM.html〉; Esteban Restrepo-Saldarriaga, ‘Advancing Sexual Health through Human Rights in Latin America and the Caribbean’, Draft manuscript, 2011 (on file with authors); ‘El décimo país del mundo, el primero de Latinoamérica’, El País, July 15, 2010 (Spain).

                                            (71) These countries now include Andorra, Australia, Austria, Brazil, Colombia, Croatia, the Czech Republic, Denmark and Greenland, Ecuador, Finland, France, Germany, Hungary, Ireland, Liechtenstein, Luxembourg, New Zealand, Slovenia, Switzerland, the United Kingdom, and Uruguay. See National Supreme Court of Justice, Decision AI 2/2010 (2010) (Mexico) (Ministro Valls Hernández concurring), 3–51 (summarizing and analyzing foreign laws and judicial decisions on same-sex marriage and partnership recognition); Schalk v Austria, ECtHR App no 30141/04, 2010, paras 27–34 (summarizing national laws regarding same-sex marriage and partnership recognition within the 47 member states of the Council of Europe); Sáez (n 70), 15–31; International Commission of Jurists (n 10), 309–80; American Bar Association Section of Family Law, ‘A White Paper: An Analysis of the Law Regarding Same-sex Marriage, Civil Unions and Domestic Partnerships’ (2004) 38 Family Law Quarterly 339; Boele-Woelki and Fuchs (n 67) (Appendix), 213–31; Maureen Cosgrove, ‘Liechtenstein voters approve civil partnership law’, Jurist, June 20, 2011, available at 〈http://jurist.org/paperchase/2011/06/liechtenstein-voters-approve -civil-partnership-law.php〉; see also Restrepo-Saldarriaga (n 70), 57–8, 74–88 (discussing legislative and judicial developments regarding same-sex marriage and partnership recognition, as well as sexual-orientation discrimination, in Latin America).

                                            (72) Código Civil para el Distrito Federal, Arts 146, 391 (Mexico); see also National Supreme Court of Justice, Decision AI 2/2010 (2010) (Mexico), paras 205–7.

                                            (73) At the time of writing, Connecticut, the District of Columbia, Iowa, Massachusetts, New Hampshire, New York, and Vermont authorize same-sex marriage. See Gill v Office of Pers Mgmt 699 F Supp 2d 374, 377 n 9 (D Mass 2010) (listing state-level marriage developments); see also NH Rev Stat §457:1-a; NY Dom Rel Law §10-a; 15 Vt Stat Ann §8; Jackson v Dist of Columb Bd of Elections & Ethics 999 A2d 89 (DC 2010); Kerrigan v Comm’r of Pub Health 957 A2d 407 (Conn 2008); Varnum v Brien 763 NW 2d 862 (Iowa 2009); Goodridge v Dep’t of Pub Health 798 NE 2d 941 (Mass 2003). California recognizes same-sex marriages if they were performed in that state between June 16, 2008 and November 5, 2008, or if they were validly performed in a different jurisdiction at any time before November 5, 2008. For any same-sex marriage performed on or after November 5, 2008, the state recognizes the unions for all purposes except the designation ‘marriage’. See California Family Code §§297, 297.5, 308. Maryland recognizes same-sex marriages lawfully performed in other jurisdictions, see ‘Marriage—Whether Out-of-State Same-Sex Marriage That is Valid in the State of Celebration May be Recognized in Maryland’, 95 Op Att’y Gen Md 3 (February 23, 2010) (Maryland), and may soon also authorize recognition of same-sex marriages performed within the state, see John Wagner, ‘Same-sex marriage bill passes house of delegates’, Washington Post, February 17, 2012, available at 〈http://www.washingtonpost.com/local/dc-politics/same-sex-marriage-bill-passes-maryland-house-of-delegates/2012/02/17/gIQARk7XKR_story.html〉. Delaware, Illinois, Hawaii, Nevada, New Jersey, Oregon, Rhode Island, and Washington State have enacted legislation authorizing same-sex partnerships without the designation ‘marriage’. Other states, including Colorado, Maine, and Wisconsin, afford more limited recognition to same-sex couples. See generally Human Rights Campaign, ‘Marriage Equality & Other Relationship Recognition Laws’, July 6, 2011, available at 〈http://www.hrc.org/files/assets/resources/Relationship_Recognition_Laws_Map%281%29.pdf〉; Axel-Lute (n 70); International Commission of Jurists (n 10), 312–13, 322–6. Population statistics for each state are available through the US Census Bureau, ‘State & County QuickFacts’, at 〈http://quickfacts.census.gov/qfd/index.html〉.

                                            Human Rights Campaign, ‘Statewide Marriage Prohibitions’, January 13, 2010, available at 〈http://www.hrc.org/about_us/state_laws.asp〉Rebekah Metzler, ‘Gathering of signatures can begin in effort to legalize gay marriage’, Portland Press Herald, August 18, 2011, available at 〈http://www.pressherald.com/news/gathering-of-signatures-can-begin-in-effort-to-legalize-gay-marriage_2011-08-18.html〉Norma Love, ‘Gay marriage repeal a top issue in New Hampshire’, Associated Press, December 25, 2011, available at 〈http://articles.boston.com/2011-12-25/news/30557074_1_marriage-law-gay-marriage-civil-unions〉

                                            State laws affecting same-sex relationships have changed rapidly over the last decade. No state, for example, recognized same-sex marriage or any equivalent status prior to 2000. This rapid progress, however, has triggered fierce backlash: a majority of states have enacted state constitutional amendments restricting marriage to one man and one woman; many of these provisions also bar recognition of civil unions or domestic partnerships. See . Change is likely to remain fast-paced. At the time of writing, for example, same-sex marriage advocates in Maine are working to gather enough signatures to place a marriage equality proposal on the 2012 ballot, while in neighboring New Hampshire, the legislature is widely expected to approve a bill repealing a marriage equality law that took effect only in 2010. See ; . The New Hampshire proposal would replace same-sex marriage with civil unions.

                                            (74) The current Administration has taken some minor steps toward very limited recognition of same-sex partners, and while it continues to enforce the federal statute defining marriage as exclusively heterosexual, it has taken the position that the statute is unconstitutional. See Charlie Savage and Sheryl Gay Stolberg, ‘In Shift, US Says Marriage Act Blocks Gay Rights’, NY Times, February 23, 2011, available at 〈http://www.nytimes.com/2011/02/24/ us/24marriage.html〉; see also Defense of Marriage Act (DOMA) §3, 1 USC §7. Various pending lawsuits are challenging DOMA's constitutionality. See eg Massachusetts v US Dep’t of Health & Human Servs 698 F Supp 2d 234, 235–6 (D Mass 2010), notice of appeal filed October 12, 2010.

                                            (75) In many countries, broad legal recognition of same-sex couples does not necessarily reflect broad cultural acceptance of LGB people. See eg Robyn Dixon, ‘In South Africa's black townships, being gay can be fatal’, Los Angeles Times, May 27, 2011, available at 〈http://articles.latimes.com/2011/may/27/world/la-fg-south-africa-gay-killings-20110528〉.

                                            (76) See eg Boele-Woelki and Fuchs (n 67), (Appendix) 215–310.

                                            (77) See Minister of Home Affairs v Fourie, 2006 (1) SA 524 (CC), 587.

                                            (78) See eg Re Same Sex Marriage [2004] 3 SCR 698 (Canada); Halpern v Canada (Attorney General) [2003] 65 OR3d 161 (Ont CA), EGALE Canada Inc v Canada (Attorney General) [2003] 225 DLR (4th) 472 (BCCA); see also Sentencia Freyre Alejandro v GCBA Sobre Amparo (Art 14 CCABA), Juzgada 1ra Inst en lo Contencioso Adm y Trib No 15, Expediente 34292/0 (October 11, 2009) (Argentina); International Commission of Jurists (n 10), 344, 365–9.

                                            (79) See Sáez (n 70), National Supreme Court of Justice, Decision AI 2/2010 (2010) (Mexico); Cour D’Arbitrage, Decision no 159/2004, October 20, 2004, Moniteur Belge, October 29, 2004, 74.279-91 (Belgium); see also E. Martín, ‘Bolo-Bolo pide al PP que retire el recurso contra los matrimonios homosexuales’, La Tribuna de Toledo, March 8, 2011, available at 〈http://www.latribunadetoledo.es/noticia.cfm/Local/20110308/bolobolo/pide/pp/retire/recurso/ matrimonios/homosexuales/B0247ED5-FCAE-6949-BB7B24C0BDB07BDC〉.

                                            (80) See sources cited at nn 70–71.

                                            (81) See generally Sáez (n 70), 4–6, 12–13; Axel-Lute (n 70); see also National Supreme Court of Justice, Decision AI 2/2010 (2010) (Mexico) (Ministro Valls Hernández concurring), 3–51 (summarizing and analyzing foreign laws and judicial decisions on same-sex marriage and partnership recognition); Schalk v Austria, ECtHR App no 30141/04, 2010), paras 27–34 (summarizing national laws regarding same-sex marriage and partnership recognition within the 47 member states of the Council of Europe).

                                            (82) UN High Commissioner for Human Rights (n 66), para 49.

                                            (83) Constitución de Ecuador, Arts 11(2), 66(9), 67, 68, 83(14).

                                            (84) See ibid; Axel-Lute (n 70); Restrepo-Saldarriaga (n 70).

                                            (85) For purposes of this chapter, we use the terms ‘partnership rights’ and ‘partnership laws’ to refer to a variety of forms of legal recognition for same-sex couples that stop short of full marriage equality, such as civil unions and civil partnerships.

                                            (86) An increasingly common variation of the procreation argument posits that marriage exists primarily or solely to mitigate the effects of ‘accidental’ or ‘reckless’ procreation among heterosexuals. See Edward Stein, ‘The “Accidental Procreation” Argument for Withholding Legal Recognition for Same-Sex Relationships’ (2009) 84 Chicago-Kent Law Review 403. Even assuming that encouraging marriage among heterosexuals helps to mitigate the effects of accidental procreation, however, it is fanciful to suggest that withholding marriage licenses from same-sex couples serves any similar purpose.

                                            M.V. Lee Badgett, When Gay People Get Married: What Happens When Societies Legalize Same-Sex Marriage (2009), 64–85

                                            Comparative analysis becomes relevant to ‘reckless procreation’ claims when opponents of LGB rights argue that legal recognition of same-sex relationships has contributed to an increase in non-marital birth rates in European countries. Various scholars have discredited these claims. See eg Eskridge and Spedale (n 67), .

                                            (87) Hernandez v Robles 855 NE2d 1, 31 (NY 2006) (Kaye CJ dissenting).

                                            (88) Andersen v King County 138 P3d 963, 969 (Wa 2006).

                                            (89) Kerrigan v Comm’r of Pub Health 957 A2d 407, 531 (Conn 2008) (Zarella J dissenting). The same year, the state of Iowa cited its ‘declining birth rate’ and asserted an interest in ‘encouraging procreative marriage’ in its unsuccessful attempt to defend its ban on same-sex marriage before the state's Supreme Court. Final Brief of Defendant-Appellant at 43, 53, Varnum v Brien 763 NW2d 862 (Iowa 2009) (No 07-1499); see also Smelt v County of Orange 374 F Supp 2d 861, 880 (CD Cal 2005):

                                            Because procreation is necessary to perpetuate humankind, encouraging the optimal union for procreation is a legitimate government interest. … By excluding same-sex couples from … marriage, … the government is communicating to citizens that opposite-sex relationships have special significance. Congress could plausibly have believed sending this message makes it more likely people will enter into opposite-sex unions, and encourages those relationships.

                                            Vacated in part on other grounds, 447 F3d 673 (9th Cir 2006). For a recent example of a similar argument, see Reply Brief for Intervenor-Appellant the Bipartisan Legal Advisory Group of the United States House of Representatives, Commonwealth of Massachusetts v US Dep’t of Health and Human Servs, No 10-2204 (1st Cir December 1, 2011), 2011 WL 6147004, at *23 (arguing that ‘Congress reasonably could have concluded’ that ‘changing the definition of marriage’ to allow same-sex marriage ‘might affect [heterosexuals’] decisions whether to marry or have children in marriage’).

                                            (90) Brief of Amici Curiae of James Q. Wilson et al, Legal and Family Scholars, in Support of Defendants-Appellants at 15, Conaway v Deane 932 A2d 571 (Md 2007) (No 44); Brief of Amici Curiae James Q. Wilson et al, Legal and Family Scholars in Support of Defendants-Respondents at 20, Hernandez v Robles 855 NE2d 1 (NY 2006); Brief of Appellee Campaign for California Families at 37, 50, Smelt v County of Orange 447 F3d 673 (9th Cir 2006) (No 05-56040).

                                            (91) Brief of Amici Curiae of James Q. Wilson et al, Legal and Family Scholars, in Support of Defendants-Appellants at 16, Conaway v Deane (n 90); Brief of Amici Curiae James Q. Wilson et al, Legal and Family Scholars in Support of Defendants-Respondents at 21, Hernandez v Robles (n 90).

                                            (92) See eg Brief Amici Curiae of James Q. Wilson et al, Legal and Family Scholars, in Support of Defendants-Appellants at 15–17, Conaway v Deane (n 90) (arguing against same-sex marriage by warning that ‘A growing number of countries view their low birth rates with the resulting population decline and ageing to be a serious crisis, jeopardizing the basic foundations of the nation and threatening its survival’, and pointing specifically to Western Europe); see also Brief of Amici Curiae National Organization for Marriage, National Organization for Marriage Rhode Island, and Family Leader in Support of the Intervening Defendants-Appellants 28–29, Perry v Schwarzenegger, No 10-16696 (9th Cir September 24, 2010); Brief Amicus Curiae of The American Center for Law & Justice In Support of Respondent Proposition 22 Legal Defense And Education Fund at 4–6, In re Marriage Cases 183 P3d 384 (Ca 2008) (No S147999).

                                            (93) See Badgett (n 86), 64–85; Eskridge and Spedale (n 67), 131–202, 271–9; Brief of Amici Curiae Legislators from United States Jurisdictions that Have Legalized Same-Sex Marriage in Support of Plaintiffs-Appellees and Affirmance at 19–27, Perry v Schwarzenegger, No 10-16696 (9th Cir October 5, 2010) (reviewing, and providing citations and weblinks to, evidence that debunks myths about the supposed negative effects of same-sex marriage and relationship recognition in foreign jurisdictions); see also Ohlsson-Wijka, ‘Sweden's Marriage Revival: An Analysis of the New-millennium Switch from Long-term Decline to Increasing Popularity’ (2011) Population Studies 1–18.

                                            (94) See sources cited at n 70.

                                            (95) See John C. Caldwell and Thomas Schindlmayr, ‘Explanation of the Fertility Crisis in Modern Societies: A Search for Commonalities’ (2003) 57(3) Population Studies 241–63; Patrick Festy, ‘Looking for European Demography, Desperately?’, Paper presented at the Expert Group Meeting on Policy Responses to Population Ageing and Population Decline in New York, October 16–18, Population Division, Department of Economic and Social Affairs, United Nations, 2000; Population Division, Department of Economic and Social Affairs, United Nations Secretariat, ‘Partnership and Reproductive Behavior in Low-Fertility Countries’, Population Newsletter 74–6 (December 2002).

                                            (96) Factum of the Attorney General of Canada, paras 17, 37, 38, Layland v Ontario (Minister of Consumer and Commercial Relations), 14 OR (3d) 658, 104 DLR (4th) 214 (Div Ct) (1993).

                                            (97) Joslin v New Zealand, Human Rights Comm, Comm No 902/1999, P 8.3, UN Doc CCPR/C/75/D/902/1999 (2002), para 4.11 (paraphrasing New Zealand's position). The Committee found in favor of New Zealand on other grounds. Ibid paras 8.1–9. By the time of the Committee's decision, Netherlands had legalized same-sex marriage. See ibid para 5.5.

                                            (98) Defendant-Intervenors-Appellants’ Opening Brief, Perry v Schwarzenegger, No 10-16696 (9th Cir September 17, 2010), 2010 WL 3762119, at *54.

                                            (99) Oral argument, Perry v Schwarzenegger, No 10-16696 (9th Cir December 6, 2010), available at 〈http://www.c-spanvideo.org/program/296911-1〉.

                                            (100) Versión taquigráfica de la sesión pública ordinaria del pleno de la Suprema Corte de Justicia de la Nación, 9 (August 3, 2010) (Señor Ministro Aguirre Anguiano), Expediente 00002/2010-00 (Mexico) (August 16, 2010).

                                            (101) Ibid 37.

                                            (102) See Exp: 03-008127-0007-CO, Res No 2006007262 (2006) (Sala Constitucional de la Corte Suprema de Justicia) (Costa Rica). In Spain, members of a center-right party have argued before the country's Constitutional Court that the government's 2005 legalization of same-sex marriage ‘distorts the very nature and essence’ of the institution as it has been understood under the legal tradition of both Spain and the ‘Western world’. Recurso de inconstitucionalidad contra la Ley 13/2005 de 1 de julio, at 17 (September 28, 2005) (Spain).

                                            (103) See Axel-Lute (n 70); see also National Supreme Court of Justice, Decision AI 2/2010 (2010) (Mexico) (Ministro Valls Hernández concurring), 3–51 (summarizing and analyzing foreign laws and judicial decisions on same-sex marriage and partnership recognition).

                                            (104) Auto 12/2008, Tribunal Constitucional de España (January 16, 2008). The claim failed on procedural grounds.

                                            (105) See Cour D’Arbitrage, Decision no 159/2004, October 20, 2004, Moniteur Belge, October 29, 2004, 74.279-91 (Belgium).

                                            (106) Versión taquigráfica de la sesión pública ordinaria del pleno de la Suprema Corte de Justicia de la Nación, 41–2 (August 12, 2010) (Señor Ministro Aguirre Anguiano), Expediente 00002/2010-00 (Mexico) (August 16, 2010).

                                            (107) Confirmation Hearing on the Nomination of John G. Roberts Jr to be Chief Justice of the United States Before the S Comm on the Judiciary, 109th Cong 200, 200-01 (2005).

                                            (108) See eg Patricia Wald, ‘Some Observations on the Use of Legislative History in the 1981 Supreme Court Term’ (1983) 68 Iowa Law Review 195, 215:

                                            consistent and uniform rules for statutory construction and use of legislative materials are not being followed today. It sometimes seems that citing legislative history is still, as my late colleague Harold Leventhal once observed, akin to ‘looking over a crowd and picking out your friends’.