(RNS) Conservatives have often criticized the liberal wing of the Supreme Court for considering the decisions of foreign courts when interpreting the U.S. Constitution. But on the issue of same-sex marriage, conservatives who want the court to exercise judicial restraint in redefining marriage may find themselves hoping, just this once, that the justices will take a cue from other nations.
On Tuesday (April 28), the court will hear arguments regarding the right of states to define marriage. Both advocates and opponents of same-sex marriage alike — expect the court will likely hand down a historic ruling that will legalize same-sex marriage in all 50 states. In not stopping lower courts from striking down state citizen-led constitutional amendments limiting marriage to a man and a woman, the justices sent a sign that a sweeping ruling lies ahead.
Such a ruling would be a definitive victory for advocates of same-sex marriage. But some believe it would be an example of judicial overreach that, although intended to “end debate” on the issue, would instead polarize the country, lead to the demonization of those who would dissent from the new definition, and follow the pattern of Roe v. Wade in setting the stage for cultural battles in the next generation.
Although the experience of other nations does not determine the Supreme Court’s interpretation of the Constitution, one of the briefs filed in the case comes from 54 international law experts from 27 countries. They call for judicial deference and a willingness to allow the democratic process to be fulfilled rather than force rapid and controversial social change.
Despite the dominant media narrative in the United States, there is no international trend toward same-sex marriage. Of the 193 nations that belong to the United Nations, only 17 have changed the definition of marriage or allowed for unions that disregard male-female complementarity as no longer essential to the meaning of marriage. Out of those 17 nations, only one did so by judicial decree: Brazil. In all other cases, the legalization of same-sex marriage took place through the legislative process.
Some may ask, what’s the difference? If societal approval of same-sex marriage in the U.S. is growing consistently and has now tipped over the 50 percent mark, why does it matter if the court decides the direction the country appears to be going anyway?
The difference is in how social change is established. The process matters. In 16 nations where same-sex unions are recognized, the changes came about not through judicial decree, but through the legislative process. Opponents and advocates alike felt they had the opportunity to make the strongest case. In these countries, people who oppose the legalization of same-sex marriage still respected the process and the decision of their fellow citizens, even if the outcome was not what they preferred.
The brief on behalf of international law representatives encourages the Supreme Court to exercise “judicial deference,” out of respect for “the significant moral, religious, and social reasons for opposing same-sex marriage unrelated to impermissible animus.”
This question of animus is one that traditional marriage advocates care about. Across the world, including countries deeply committed to the rights of LGBT citizens, the courts have repeatedly stated that there are rational reasons, not bigoted and hateful, for limiting marriage to a man and woman. For this reason, “courts with national effect in 11 LGBT-friendly countries, plus the European Court of Human Rights and U.N. Human Rights Committee, have all rejected a constitutional or fundamental right to same-sex marriage.”
Advocates of traditional marriage laws hope the Supreme Court will show restraint, not overreach. The brief lays out three reasons why:
- “Judicial deference to marriage legislation respects the need for democratic legitimacy and deliberation.”
- It “permits nuanced compromises on socially and morally complex issues.”
- It “prevents perpetuation of conflicts.”
If the conclusions of this brief are sound, then a sweeping ruling from the Supreme Court may not be the end of the debate on marriage policy, but only the beginning.
(Trevin Wax is managing editor of The Gospel Project and author of multiple books, including “Clear Winter Nights: A Journey Into Truth, Doubt and What Comes After.”)
YS/AMB END WAX