Cherilyn Wilson, 26, and Chelsea Kane, 26, display their fists, with the message "Love Wins" written on them, as they pose at a celebration rally in West Hollywood, California, United States, June 26, 2015.
Cherilyn Wilson, 26, and Chelsea Kane, 26, display their fists, with the message "Love Wins" written on them, as they pose at a celebration rally in West Hollywood, California, United States, June 26, 2015. 
Lucy Nicholson / Reuters

Obergefell v. Hodges, the U.S. Supreme Court case that established a constitutional right to same-sex marriage, is certainly destined to enter the history books as a “landmark,” one of those rare cases law scholars and schoolchildren alike study for its profound impact on American society. But the occasion also offers an opportunity to reflect on the puzzle of why the country that birthed the gay rights movement with the Stonewall riots of 1969 fell so far behind in guaranteeing marriage equality to its homosexual population. After all, around 20 other nations have bested the United States in legalizing same-sex marriage at the national or federal level, including liberal stalwarts such as the Netherlands (which started the trend in 2001); other leading democracies of the day, such as the United Kingdom and France; and states not known for their social progressivism, such as Spain, South Africa, Brazil, and Ireland. Unsurprisingly, news of the federalization of same-sex marriage in the United States across western Europe and Latin America has been met with a collective “What took you so long?” 

The White House is illuminated in rainbow colors after the historic Supreme Court ruling legalizing gay marriage in Washington, June 26, 2015.
The White House is illuminated in rainbow colors after the historic Supreme Court ruling legalizing gay marriage in Washington, June 26, 2015. 
Gary Cameron / Reuters
Much less obvious is that Obergefell, for all its historical significance, does not break any new international constitutional ground. Ironically, some of the boldest rulings on same-sex marriage by high courts have come in countries where social conditions for gay rights are far less inauspicious than in the United States. The 2006 ruling by the Constitutional Court of South Africa, a court in one of the world’s most religious societies, that banning same-sex marriage violated the country’s post-apartheid constitution came in the face of widespread opposition from a deeply religious public. When the Mexican Supreme Court upheld a 2009 law legalizing same-sex marriage and adoption that had been enacted by the Mexico City Assembly and forced all Mexican states to recognize gay marriages and adoptions conducted in the Mexican capital, it did so in defiance of the conservative administration of President Felipe Calderón and of the hierarchy of the Catholic Church, which had threatened to excommunicate any member of the Mexico City Assembly who voted in favor of the law. Earlier this month, without much fanfare, the Mexican Supreme Court issued a special decree that all laws across the nation banning same-sex marriage were discriminatory and therefore unconstitutional.

PUNTING ON MARRIAGE

The strategy had significant costs, including prolonging the nation’s bitter culture war over same-sex marriage and inflicting significant anguish on the gay community.
There is, of course, no shortage of good explanations for why the United States fell behind on same-sex marriage. It was only in 2010 that a majority of Americans came to support the idea that same-sex couples have the right to marry. As recently as 2005, approval of same-sex marriage did not register above 40 percent. It is also the case that even after a majority of the American public came to embrace same-sex marriage, the issue has not ceased to be divisive in U.S. politics. It is telling that in the incipient 2016 presidential campaign, all the candidates on the Democratic side are for same-sex marriage, including presumptive nominee Hillary Clinton, and all those on the Republican side (more than a dozen as of today) are against it. Marriage has also traditionally been regarded in the United States as a “state” rather than a “federal” issue, as can be seen in the very different laws governing marriage found around the country.

Yet all of these explanations take a backseat to a peculiar American development: the decision by the U.S. Supreme Court to deliberately punt on same-sex marriage after 2003, when the Court struck down all remaining sodomy laws in Lawrence v. Texas, leaving the issue of marriage to be dealt with primarily by lower-level federal courts and state courts and legislatures. Behind this strategy was the desire to avoid “another Roe v. Wade,” the decision that legalized abortion across the land in one fell swoop in 1973 and subsequently unleashed a massive anti-abortion movement.

The punting strategy deserves some credit. Namely, it achieved its primary goal: to allow public support for same-sex marriage to build before the Court took a decisive position on the issue. The strategy also had significant costs, though, including prolonging the nation’s bitter culture war over same-sex marriage and inflicting significant anguish on the gay community. Beyond that, the strategy exposes some of the structural and political elements of the U.S. constitutional system that have made it harder to advance gay rights at home than abroad. 

POLITICAL PRAGMATISM OVER PRINCIPLE

An anti-abortion march in front of the Supreme Court January 22, 1999.
An anti-abortion march in front of the Supreme Court January 22, 1999.
Reuters
Supreme Court Justice Ruth Bader Ginsburg, a reliable vote on gay rights, all but revealed the Supreme Court’s strategy of punting on gay marriage in a 2013 “public conversation” at the University of Chicago Law School. She argued that the Court had gone “too far” with Roe v. Wade and that in doing so, “the Court had given opponents of access to abortion a target to aim at relentlessly.” She added: “Roe was too sweeping . . . [and the ruling] seemed to have stopped the momentum that was on the side of change.” In a follow-up remark that many interpreted as a road map for how the Court was approaching same-sex marriage, she noted that when it came to divisive social issues, “judicial restraint” could be a more effective approach than expansive decisions. “The Court can put its stamp of approval on the side of change and let that change develop in the political process,” she said.

It is hard to disagree with the Supreme Court’s political calculations in approaching same-sex marriage. For starters, the Court’s punting on same-sex marriage did not stall progress on the issue. Just prior to the decision, same-sex marriage was already legal in 37 states, covering almost 70 percent of the American public. About half of those states gained same-sex marriage after the Court struck down the Defense of Marriage Act (DOMA) in 2013. Congress passed that law with veto-proof majorities in 1996 in a fit of homophobic panic ensuing from a 1993 ruling by the Supreme Court of Hawaii that excluding same-sex couples from marriage was a violation of the state’s constitution, to prevent the federal government from recognizing same-sex marriage. Although the DOMA decision, United States v. Windsor, did not make same-sex marriage a constitutional right, it opened the way for a cascade of lower court rulings declaring same-sex marriage bans unconstitutional. Because of this, Obergefell will likely prevent a Roe-like backlash, although it is unlikely that same-sex marriage will vanish from the culture wars.

But the price of the Court’s punting has been almost unbearable for some, and this needs to be acknowledged. The strategy not only delayed the arrival of marriage equality in the United States relative to other liberal democracies, it also allowed for offenses and injuries against the gay community not seen abroad, including some 30 state referendums that put the right to marriage for same-sex couples­ to the whim of the majority and the rise of a seemingly incomprehensible patchwork of same-sex marriage laws across the United States. Until Obergefell was decided, same-sex marriage was allowed in Illinois but not in Michigan, in Oklahoma but not in Texas, and in some but not all system of same-sex marriage laws placed on gay couples is woven into the heartbreaking story behind Obergefell. John Obergefell married John Arthur, his terminally ill partner, in Maryland, but when they returned to their home state of Ohio, the government refused to recognize Obergefell as the legitimate surviving spouse, which provoked the lawsuit that bears his name. 

The U.S. Supreme Court’s maneuvering around the issue of same-sex marriage reveals elements in the U.S. constitutional system that make it hard for the Supreme Court to unequivocally advance gay rights.
It is also worth noting that although compelling, the analogy between gay marriage and abortion is something of a red herring. Not surprisingly, the analogy is most often raised by foes of the gay community, such as the National Organization for Marriage and the Family Research Council. Both organizations have already pledged to launch a Roe-like assault upon the same-sex marriage ruling. It is hard to see such an effort succeeding, though. While public opinion data on gay marriage continue to climb in the direction of approval—currently over 60 percent, having grown by a 20-point span within the last ten years alone—public sentiment on abortion remains split down the middle since Roe was decided in 1973. Opinion polls also make it clear that the public does not see abortion and gay marriage as having the same moral weight. Many devoted Catholics and evangelicals see gay marriage as an attack on marriage itself, but others draw a distinction between the two, by reasoning that whereas gay marriage is just two people getting married, abortion is a matter of life and death.

CONSTITUTIONAL LIMITATIONS

Whatever the legacy of Roe on same-sex marriage, the U.S. Supreme Court’s maneuvering around the issue, as seen through foreign experiences, reveals elements in the U.S. constitutional system that make it hard for the Supreme Court to unequivocally advance gay rights. They rest at the heart of why the Supreme Court, in contrast to other high courts, had such a tortured arrival at same-sex marriage—not only the punting but also the bitterly divided Obergefell vote (5–4).  The first element is a structural one: the U.S. Supreme Court operates within an unusually conservative (some might say outmoded) philosophical framework, and this severely limits the extent to which the Court can make declarative statements regarding social rights, including same-sex marriage.

For all of its famous elasticity, the U.S. Constitution remains remarkably faithful to its eighteenth-century philosophical foundations, and its relatively narrow notions of social rights are broadly reflective of those foundations. By contrast, since World War II, most constitutions in liberal democracies have undergone dramatic revisions, if not a complete overhaul, to incorporate contemporary notions of social rights, especially those specified in the 1948 Universal Declaration of Human Rights. Although the declaration is silent on the issue of sexual orientation, it makes specific reference to “dignity,” which is widely interpreted abroad as a justification for gay civil rights, including same-sex marriage.

Scotty Seidenglanz, 18, (R) and Noah Ulin, 20, attend a celebration rally in West Hollywood, California, United States, June 26, 2015.
Scotty Seidenglanz, 18, (R) and Noah Ulin, 20, attend a celebration rally in West Hollywood, California, United States, June 26, 2015.
Lucy Nicholson / Reuters
Dignity is a foreign concept in the U.S. Constitution, and its citation in Obergefell to justify that banning same-sex marriage is a violation of the Constitution’s clause of equal protection under the law because excluding gay people from marriage robs them of their dignity has upset constitutional purists. But in many countries, dignity, by way of human rights, is a widely embraced constitutional principle that has been broadly used to facilitate same-sex marriage. In ruling in favor of same-sex marriage, the Canadian Supreme Court ruled that excluding same-sex couples from marriage was a violation of the Canadian Charter of Rights and Freedoms, a 1982 addition to the federal constitution. Grounded on human rights arguments, South Africa’s post-apartheid constitution is the first in the world to explicitly outlaw discrimination on the basis of sexual orientation; this made it a no-brainer for the Constitutional Court of South Africa to demand that the government grant the right to marriage to same-sex couples.

Argentina’s constitution, which underwent a radical revamping in 1994 to ensure that the nation would never endure the human rights abuses of the past, including the infamous Dirty War (1976–1983), granted all human rights treaties in which the country participates—including the Universal Declaration of Human Rights and the American Convention on Human Rights (otherwise known as the Pact of San José de Costa Rica)—the weight of constitutional law. This allowed same-sex couples to take refuge in the courts when seeking the right to marry. Indeed, just prior to Argentina becoming the first country in Latin America to legislate same-sex marriage, in July 2010, a court ruled that denying same-sex couples the right to marriage was a violation of the Argentine constitution and of its commitment to upholding human rights principles such as equality and dignity.

SUPREME INSULARITY

High court rulings from abroad offer a study in contrasts. In many of their rulings on same-sex marriage, the Latin American high courts have broadly engaged in “transnational legalism,” or the borrowing of legal precedent from other countries in their deliberations.
The second element is political: the aversion of the U.S. Supreme Court to engage international law in its deliberations. This creates an insularity that puts the U.S. high court out of step with the rest of the international community, especially other liberal democracies. The U.S. Supreme Court’s aversion to citing foreign precedent, especially by the Court’s most conservative members, was highlighted by Justice Ginsburg, who in a 2009 speech at Ohio State University lamented that, in striking contrast to the behavior of the Court in the nineteenth century, the American justices no longer rely on foreign opinions when rendering its decisions. She also warned about the consequences of this, especially the loss of prestige and influence abroad for the U.S. Supreme Court. “You will not be listened to if you don’t listen to others,” she admonished, adding that the American unwillingness to engage with international jurisprudence accounts for why the Canadian Supreme Court rulings rather than those of the U.S. Supreme Court are the most influential internationally.

High court rulings from abroad offer a study in contrasts. In many of their rulings on same-sex marriage, the Latin American high courts have broadly engaged in “transnational legalism,” or the borrowing of legal precedent from other countries in their deliberations. Brazil’s 2011 decision by the Federal Supreme Court to put homosexual and heterosexual unions on the same legal footing drew on several international sources. Chief Justice Celso de Mello cited the Yogyakarta Principles, a 2006 agreement by a notable group of human rights experts to fight discrimination on the basis of sexual orientation and gender identity. Justice Ellen Gracie, the first female appointed to the Court, cited Spanish Prime Minister José Luis Rodríguez Zapatero’s memorable speech at the time of the signing of Spain’s 2005 same-sex marriage law, the first of its kind for an overwhelmingly Catholic nation, which recognizes the “rights of our neighbors and family in extending marriage rights to same-sex couples.”

Ironically, Latin American countries have also found much inspiration in U.S. jurisprudence to rule decisively in favor of same-sex marriage. The December 2012 ruling by the Mexican Supreme Court, which declared unconstitutional denying the right to marry to three same-sex couples from Oaxaca, cited two famous cases from U.S. jurisprudence—Brown v. Board of Education, the 1954 law that declared separate public schools for black and white students unconstitutional, and Loving v. Virginia, the 1967 landmark case that struck down laws banning interracial marriage. Citing the Loving decision, Justice Arturo Zaldívar Lelo de Larrea noted that “in comparative law it has been argued that discrimination that homosexual couples have suffered when they are denied access to marriage is analogous with the discrimination suffered by interracial couples from another era.” The justice further noted that in Loving v. Virginia, the U.S. Supreme Court argued that restricting marriage rights as belonging to one race or another was incompatible with the equal protection clause. 

UNSUNG HEROES

Regardless of the inelegant ways the U.S. Supreme Court got to same-sex marriage, Obergefell highlights the fact that the courts may well be the unsung heroes in the global spread of gay rights. In discussions of the gay rights advances of recent decades, it is gay activists, progressive politicians, and shifting public opinion on homosexuality, rather than the courts, that get the lion’s share of the credit. Yet in the United States and around the world, the courts have been at the forefront in the struggle, often leading rather than following society. Indeed, to suggest that the courts have emerged as the great savior of the gay community in guaranteeing their civil rights in countries such as the United States, Brazil, and Mexico, where legislative action on same-sex marriage was all but precluded by the politics of the issue, is not to overstate the point.

There is a rich historical irony in all of this. Until recently, gay rights organizations actively discouraged ordinary gays and lesbians from approaching the courts demanding the right to marry (indeed, for decades ordinary gays and lesbians had to go at this alone, without the support of the “official” movement), fearing that a broad ruling against same-sex marriage could deal a massive setback to the cause. Considering that pro–gay rights rulings by the U.S. Supreme Court began in earnest only with Lawrence v. Texas, these fears were more than well-founded. Such a long history of animus by the Court toward the gay community makes the Obergefell decision, although overdue, all the more special.

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  • OMAR G. ENCARNACIÓN is Professor of Political Studies at Bard College and author Out in the Periphery: Latin America’s Gay Rights Revolution, forthcoming from Oxford University Press.
  • More By Omar G. Encarnación