Chapter fourteen: Marriage

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This book began with decriminalisation because the criminalisation of same-sex sexual relationships and the concomitant portrayal of all gays and lesbians as criminals is perhaps the most significant obstacle to their realisation of full human rights. The closing chapter focuses on the responses of courts to demands by same-sex couples for marriage equality. In many ways this is the opposite end of the spectrum. Because the legal landscape is changing so rapidly, any list of the countries where gays and lesbians enjoy full access to marriage would soon be rendered obsolete.^[1] Marriage equality has been achieved by both legislative and judicial means and court cases have often served to drive legislative reform.

If the criminal laws are about sex and decriminalisation cases perpetuate a “hyper-sexualised” notion of gay men and women, marriage cases are about full citizenship and equal participation in one of the most basic elements of civic life.^[2] They are also cases in which the role of international law is negligible. Unlike decriminalisation cases, most of which refer to Toonen v. Australia and Dudgeon v. United Kingdom as well as comparative law, marriage cases do not revolve around international or regional human rights jurisprudence. One significant exception is the decision of the Mexican Supreme Court of Justice, which concerned a challenge to a new law providing for same-sex marriage. The Supreme Court of Justice declared the law in question (Article 146 of the Federal District Civil Code) constitutional, relying partly on the prohibition in international law of discrimination on grounds of sexual orientation.

The reason for this is textual. In the current state of international law, marriage is defined as a union of opposite sex couples. Thus Article 16 of the Universal Declaration of Human Rights provides: “Men and women . . . have the right to marry and to found a family”. Article 23 of the ICCPR states: “[T]he right of men and women of marriageable age to marry and to found a family shall be recognized.” The terms of Article 12 of the European Convention are almost identical. Interpreting Article 23, in Joslin v. New Zealand the UN Human Rights Committee found New Zealand had not violated rights under the ICCPR because it did not provide for same-sex marriage. The Human Rights Committee stated: “Use of the term ‘men and women,’ rather than the general terms used elsewhere in Part III of the Covenant, has been consistently and uniformly understood as indicating that the treaty obligation of States parties stemming from article 23, paragraph 2, of the Covenant is to recognize as marriage only the union between a man and a woman wishing to marry each other”.^[3] In Schalk and Kopf v. Austria, the European Court reached much the same conclusion regarding Article 12. Noting the absence of a consensus regarding same-sex marriage in Europe and that the choice of wording in Article 12 was deliberate, the Court held that the Convention did not impose an obligation on Austria to grant same-sex couples access to marriage.^[4] It left the door slightly ajar, stating that it “would no longer consider that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two persons of the opposite sex”, but it did not specify what those circumstances might be.^[5]

As it stands, then, international law does not require States to ensure that access to marriage is equally available to all. Nor, however, does international law prohibit States from recognising same-sex marriage. In Fourie, the Constitutional Court of South Africa observed: “[w]hile it is true that international law expressly protects heterosexual marriage it is not true that it does so in a way that necessarily excludes equal recognition being given now or in the future to the right of same-sex couples to enjoy the status, entitlements, and responsibilities accorded by marriage to heterosexual couples”.^[6] International law thus functions as a floor, not a ceiling.

In all the cases presented here, the parties who challenge the exclusion of same-sex couples, under common law or statutory definitions of marriage, have argued that such exclusion was discriminatory under domestic constitutional provisions on equal protection and non-discrimination. (In Perry v. Schwarzenegger, the plaintiffs also argued that denying access to marriage violated their right to liberty under the US Constitution.) For the Halpern and Fourie Courts, sexual orientation was clearly a prohibited ground of discrimination. In the case of South Africa, sexual orientation is specified in Section 9 of the Constitution. In Canada, the courts had earlier determined that sexual orientation was a ground “analogous” to the other protected grounds listed in Section 15 of the Canadian Charter. Analysis then focused on whether limiting the right could be justified.

The criteria for such a justification were set out respectively in section 1 of the Canadian Charter and section 36 of the Constitution of South Africa. Essentially, they require courts to make a proportionality analysis that involves assessing the purpose of the law, the importance of the right infringed by the law, and the degree of infringement. Somewhat similar arguments were put forward in both cases regarding the importance of encouraging “procreation” (defined as unassisted sexual reproduction), and the courts advanced similar reasons for rejecting procreation as a justification. In Halpern, the Court found that, although encouraging procreation was a pressing and substantial governmental goal, it could not be said to be the objective of the marriage exclusion. Excluding same-sex couples from marriage did not have any impact on whether heterosexual couples married or had children. Because same-sex couples could have children via adoption, surrogacy, or donor insemination, “natural” procreation was not a sufficiently pressing and substantial objective to justify infringing the equality rights of same-sex couples. The Halpern Court stated:

The law is both overinclusive and underinclusive. The ability to ‘naturally procreate and the willingness to raise children are not prerequisites of marriage for opposite-sex couples. Indeed, many opposite-sex couples that marry are unable to have children or choose not to do so. Simultaneously, the law is underinclusive because it excludes same-sex couples that have and raise children.^[7]

In Acción Inconstitucionalidad 2/2010, which concerned a constitutional challenge to a new law providing for same-sex marriages, the Supreme Court also analysed the procreation rationale. It noted that the institution of marriage had been separated from biological reproduction and that heterosexual reproduction could therefore no longer be the defining feature of marriage.^[8]

The Constitutional Court of South Africa used similar reasoning in rejecting the “procreative potential” argument in Fourie.The other principal argument advanced in Fourie was that same-sex marriage would violate religious freedom. While acknowledging that under the Constitution religious leaders could not be compelled to officiate same-sex marriages, the Court was equally firm that religious doctrine could not be used as a source for constitutional interpretation. The constitutional ideal was a “mutually respectful co-existence between the secular and the sacred”.

US courts have adopted different approaches. In Varnum v. Brien, the Supreme Court of Iowa found that sexual orientation was a “quasi-suspect” group under its equal protection framework, meaning that laws distinguishing on this basis triggered the application of an intermediate level of scrutiny. (To pass intermediate scrutiny, a law must further an important governmental interest and be substantially related to that interest. Distinctions based on sex, for example, are subject to intermediate scrutiny in US equality jurisprudence.) To determine whether the group characteristic of sexual orientation deserved heightened scrutiny, the Court considered a variety of factors. It recognised that a history of “purposeful and invidious discrimination” against gays and lesbians made it more likely that any legislative burdens placed on the class were the reflection of “deep-seated prejudice”. It noted that sexual orientation was unrelated to a person’s ability to contribute to society. It concluded that same-sex sexual orientation, whether or not immutable, was such a significant part of a person’s identity that it was not appropriate to require a person to repudiate, change or conceal it in order to avoid discriminatory treatment. In this, the Court’s position was similar to that of the Supreme Court of Canada in Egan, which found that sexual orientation was an analogous ground because it was a “deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs”.

In Varnum, the State of Iowa proffered three principal legislative objectives. These were to support the traditional institution of marriage; to promote procreation; and to promote optimal childrearing conditions. The Court found the first objective circular. Maintaining the traditional understanding of marriage was: “simply another way of saying the governmental objective is to limit civil marriage to opposite-sex couples. Opposite-sex marriage, however, is the classification made under the statute, and this classification must comply with our principles of equal protection.” Likewise, the Ontario Court of Appeal in Halpern dismissed tradition. “Stating that marriage is heterosexual because it always has been heterosexual is merely an explanation for the opposite-sex requirement of marriage; it is not an objective that is capable of justifying the infringement of a Charter guarantee.”

Nor was maintaining tradition a proper objective. The Varnum Court stated: “If a simple showing that discrimination is traditional satisfies equal protection, previous successful equal protection challenges of invidious racial and gender classifications would have failed”. It also noted that it was not legitimate to argue that a “more inclusive notion of marriage will transform civil marriage into something less than it presently is for heterosexuals”. A similar argument made by amicus curiae in Fourie was dismissed by the Constitutional Court as “profoundly demeaning to same-sex couples”.

As for the creation of optimal childrearing environments (i.e., heterosexual households), the Supreme Court of Iowa found this legislative objective to be both unsupported by the evidence and irrelevant. The data offered on optimal childrearing environments did not support the defendants’ arguments. Furthermore, same-sex couples in Iowa were already raising children and there was no evidence that the marriage ban affected their choices about whether or not to have children. Thus even if the defendants had somehow succeeded in showing that the optimal childrearing environment was heterosexual, there was no link between the marriage ban and preventing same-sex couples from having children. The procreation argument was similarly dismissed. The State of Iowa had failed to show how the exclusion of gay and lesbian individuals from marriage would result in more procreation. The Court stated:

Thus, the sole conceivable avenue by which exclusion of gay and lesbian people from civil marriage could promote more procreation is if the unavailability of civil marriage for same-sex partners caused homosexual individuals to ‘become’ heterosexual in order to procreate within the present traditional institution of civil marriage. The briefs, the record, our research, and common sense do not suggest such an outcome.

In Perry v. Schwarzenegger, the District Court for the Northern District of California used rational basis review, the most deferential approach, to evaluate a constitutional amendment (Proposition eight) that limited marriage to opposite-sex couples. Based on the evidence presented at trial, it found that gays and lesbians were the type of class which strict scrutiny (the highest in the tiered US system) was intended to protect, because they had experienced a history of purposeful discrimination and had been subjected to legislative burdens on the basis of stereotype. It used the most deferential standard of review because it found no legitimate governmental interest at all. Since the State of California had refused to defend Proposition 8, the arguments were advanced by the intervenors. Like the Supreme Court of Iowa in Varnum, the District Court found that preserving the traditional institution of marriage as the union of a man and a woman was not a rational basis for a law. “Rather, the state must have an interest apart from the fact of tradition itself”. Nor was the Court persuaded by arguments that implied opposite-sex partners were preferable as parents or that opposite- sex partnerships encouraged biological reproduction. Under California law, same-sex couples could have children, or adopt and raise them, and were treated identically to opposite-sex parents. “Even if California had an interest in preferring opposite-sex parents to same-sex parents – and the evidence plainly shows that California does not – Proposition 8 is not rationally related to that interest, because Proposition 8 does not affect who can or should become a parent under California law.” The District Court said the evidence presented at trial showed “conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples”. Moral and religious views, however, were not a sufficient basis for a legislative classification.

The cases in which courts rejected challenges to the exclusion of same-sex couples from civil marriage adopt two principal positions. In the first case, courts hold that marriage is traditionally defined as the union of one man and one woman and that this definition alone is decisive. In the second, courts affirm that the legislature, not courts, must be responsible for any redefinition of marriage. In Portugal, where the Constitution prohibits discrimination based on sexual orientation, the Constitutional Tribunal adopted a narrow view of its role. Although Article 36(1) of the Constitution provided that everyone “has the right to form a family and to marry under conditions of full equality”, the Constitutional Tribunal held that its drafters would have used explicit language if they had intended to open marriage to same-sex couples. Article 36 did not prohibit same-sex marriage, but it was not for the judiciary to redefine marriage. Following this case, the Portuguese Parliament approved a bill legalising same-sex marriage and the President referred several of the bill’s articles to the Constitutional Tribunal for review. A majority of the Court found that the bill was constitutional and in June 2010 the law went into effect. (Married same-sex couples, nevertheless, still have no right to adopt children.^[9]

A similar tension between the roles of the judiciary and the legislature with respect to the definition of marriage and the protection of individual rights is evident elsewhere. In 1993, the Supreme Court of Hawaii was the first American court to find that the State’s refusal to allow equal access to marriage was in violation of the State Constitution’s guarantee of equal protection. In response, voters approved a constitutional amendment granting the State legislature the power to limit marriage to opposite-sex couples. A similar decision by the Supreme Court of California led to the passage of Proposition 8, an amendment to the State constitution limiting marriages to opposite-sex couples. Although in Perry the District Court found that Proposition 8 violated the federal Constitution, that decision is currently pending appeal to the Court of Appeals for the Ninth Circuit. In Argentina, following Freyre and similar cases, the legislature legalised same-sex marriage in July 2010.

The cases from Israel and Ireland show the impact that foreign judgments have on jurisdictions that limit marriage to opposite sex couples. The two courts adopted very different approaches to the question of whether a foreign marriage could be recognised domestically. For the Supreme Court of Israel, the answer was procedural. The duty of the registrar was to register duly authenticated marriage certificates and not to inquire into the capacity of the individuals to marry. This decision applied a rule, that the registration of marital status is merely an administrative procedure, which was established in an earlier case, Funk-Schlesinger v. Minister of Interior. Although the Court emphasised that registration of the marriage did not decide whether it was a valid marriage in Israel, in practice Israeli authorities rely on registration to grant spousal benefits.^[10] For the High Court of Ireland, a marriage of two Irish women performed in British Columbia (Canada) could only be given effect if those individuals had the capacity to marry under domestic law. It was, in other words, a substantive inquiry. Other jurisdictions have reached different conclusions. France recently recognised for tax purposes the foreign marriage of two Dutch men who were resident in France.^[11]

Marriage is at once practical and symbolic. Being married entails a bundle of rights and responsibilities. A spouse’s rights to joint tenancy, inheritance, hospital visitation, and social security and pension benefits are usually unquestioned under default rules. In this sense, marriage cases are a logical extension of previous victories that have been won in the courtroom or the legislature. In Fourie, the Constitutional Court carefully delineated the achievements of prior cases: immigration benefits for same-sex partners; pension rights for surviving partners; joint adoption; and parental rights for same-sex partners where the other partner conceives through artificial insemination.^[12] In Perry v. Schwarzenegger, the District Court noted that same-sex unmarried couples and opposite-sex married couples had the same parental rights under California law. All the incidents of marriage had been afforded to same-sex couples in the form of domestic partnerships.

However, marriage also has a symbolic weight. The status of being married means that the law recognises, protects, and values the relationship. Marriage both has and creates meaning far beyond the economic benefits apportioned by the State to married couples. Many of the marriage cases acknowledge the social and cultural significance of marriage. On these grounds, the Supreme Court of Mexico in Acción Inconstitucionalidad 2/2010 dismissed the Attorney General’s argument that civil unions would have been constitutionally adequate to recognise same-sex relationships. In Perry, the Court found that California had created domestic partnerships in order to offer same-sex couples the rights and benefits provided by marriage, while withholding the title of marriage, but this denial of title signalled that same-sex couples were inferior, in violation of the constitutional guarantee of equal protection. Similarly, in Fourie, the Constitutional Court considered and rejected the idea of civil partnerships because they perpetuated the “separate but equal” ideology that had pervaded both South Africa during apartheid and the United States during slavery. The Court stated: “In a context of patterns of deep past discrimination and continuing homophobia, appropriate sensitivity must be shown to providing a remedy that is truly and manifestly respectful of the dignity of same-sex couples”.

The fact that constitutional challenges to sodomy laws and constitutional challenges to definitions of marriage are occurring simultaneously tells us that legal landscape is changing rapidly but evenly. The struggle for equality is advancing at very different rates in different countries. Unlike the decriminalisation cases, very few of the arguments that defend opposite-sex marriage rely on public morality. Instead, justifications are usually based on the traditional definition of marriage and the State’s interest in promoting procreation and opposite-sex households for childrearing. Many of these cases demonstrate a vigorous enforcement by courts of the prohibition of discrimination on grounds of sexual orientation.

The number of successful marriage cases in various countries would have been unthinkable even a decade ago. Some commentators have suggested that a series of legal events in the 1990s hastened the promotion of the equality norm – the inclusion of sexual orientation in South Africa’s post-apartheid constitution, the decision of the European Court of Human Rights that sexual orientation was included within Article 14 of the European Convention, and the similar decision of the Supreme Court of Canada concerning the Canadian Charter.^[13] What is clear is that courts are very aware of each other’s reasoning and conclusions. Even where the outcome varies, courts are required to respond to the foreign and international law arguments raised by litigants. As Chapter 13 also demonstrates, even where courts do not recognise a right to marry and have reserved that institution for opposite-sex couples, courts have sought to prevent differences in treatment between couples based on sexual orientation.

The degree of cross-cultural convergence around the norm of non-discrimination based on sexual orientation indicates its universality.