JURIST Guest Columnist Nathan Crombie, Columbia Law School Class of 2012, is currently researching the influence of international human rights law on same-sex marriage. Here he argues that international law should influence the Ninth Circuit’s ruling on same-sex marriage…

The US Court of Appeals for the Ninth Circuit is currently considering the constitutionality of Proposition 8, the 2008 initiative that amended the California Constitution to provide that only marriage between a man and a woman would be recognized by the state. In determining the initiative’s constitutionality, the court will follow the approach of Judge Vaughn Walker of the US District Court for the Northern District of California, subjecting Proposition 8 to analysis under the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the US Constitution. These clauses will invite scrutiny of the validity of asserted governmental interests in confining marriage to opposite-sex couples. However, traditional constitutional analysis does not involve examination of US obligations under international human rights law. Neglecting to analyze these obligations removes a valuable reference favoring same-sex marriage recognition, bucking an increasing trend among foreign courts.

The principal obligations relevant to the issue of same-sex marriage are contained in the International Covenant on Civil and Political Rights (ICCPR). The US signed the ICCPR in 1977 and ratified it in 1992, subject to a number of reservations, understandings and declarations. Article 26 of the ICCPR provides that all persons are equal before the law and entitled to equal protection under it. In this respect, state parties must guarantee equal and effective protection against discrimination on a number of grounds, including sex, race and “other status.”

The Human Rights Committee is a body of independent experts charged with overseeing the implementation of the ICCPR by state parties, and it carries out this task in two ways. First, it periodically issues “general comments” that interpret the rights set out in the ICCPR. Second, it sits in a quasi-judicial capacity and makes non-binding recommendations in response to communications by nationals against those state parties that have acceded to the First Optional Protocol to the ICCPR.

The committee has provided significant guidance on how to interpret Article 26. In General Comment 18, the committee observed that Article 26 is a stand-alone right that prohibits discrimination in “any field” regulated and protected by public authorities. If a state party discriminated in a regulated field, it would need to advance “reasonable and objective” criteria for doing so. In the Toonen v. Australia communication of 1994, the committee held that prohibited discrimination on the grounds of “sex” in Article 26 included discrimination on the basis of sexual orientation. On its face, these two interpretations suggest that in regulating the institution of marriage the US would have to do so on a non-discriminatory basis that included same-sex couples.

However, Article 23(2) provides that “[t]he right of men and women of marriageable age to marry and to found a family shall be recognized.” Taking into account the historical context of the ICCPR and its official negotiation records, this right is generally accepted as being limited in scope to opposite-sex marriage. This was confirmed in the Joslin v. New Zealand [PDF] communication of 2002. There, the committee dismissed arguments that Article 26 required New Zealand to provide same-sex marriage. It held that Article 26 must be read in light of the guarantee of heterosexual marriage in Article 23(2). The committee neglected to conduct a “reasonable and objective” inquiry into the denial of same-sex marriage because overwhelming state practice exhibited a “consistent and uniform” understanding that marriage was innately heterosexual. At this time, the Netherlands was the only country to have enacted same-sex marriage.

Since 2002, state practice in the area of same-sex marriage has changed significantly. There are currently 10 countries in the world that allow same-sex marriage, along with six states and the District of Columbia in the US itself. Proponents of same-sex marriage are making substantial gains in countries such as Australia and the UK, suggesting that the number of jurisdictions instituting marriage equality will continue to increase over time. With this increased recognition, the committee would have less room to circumvent a reasonable and objective inquiry on the basis of state practice if the issue of same-sex marriage came before it today. Recent communications holding that the denial of survivor pensions to those who had been in same-sex relationships violated Article 26 furthermore suggest that state parties would have difficulty persuading the committee that there were “reasonable and objective” bases for continuing to deny recognition of same-sex marriage.

Although the US is not a party to the First Optional Protocol to the ICCPR, it would be inadvisable for the Ninth Circuit to ignore the committee’s “jurisprudential trend” towards finding that denial of same-sex marriage violates the equality guarantee in Article 26. This is because the “understandings” the US filed upon ratifying the ICCPR indicated that it would provide at least an equivalent, if not greater, guarantee of equality than provided for under the ICCPR. The first understanding asserted that the US Constitution provides “extensive protections against discrimination,” and provided that distinctions drawn on a ground that invoked Article 26 would be permitted when they were, at minimum, related to a legitimate government objective. This is a clear reference to Equal Protection Clause jurisprudence under the Fourteenth Amendment. Given that the committee’s “reasonable and objective criteria” inquiry raises substantially similar issues as an Equal Protection analysis, the Ninth Circuit should give weight to the committee’s rejection of these justifications when it evaluates the state interests advanced in favor of upholding Proposition 8. Doing so will ensure harmonization between the levels of equal protection recognized by the US under the Equal Protection Clause, and by the committee under Article 26. The court will also ensure it fulfills its duty under the compliance with the fifth understanding, which provides that the ICCPR shall be implemented to the extent the federal government exercises judicial jurisdiction over issues raised under it.

Abandoning the traditionally myopic attitude towards international law in the context of same-sex marriage cases will also bring federal courts in line with trends in overseas jurisdictions. Courts in New Zealand and South Africa have specifically invoked Article 26 of the ICCPR when ruling on the constitutionality of same-sex marriage. In New Zealand, two Court of Appeal justices in the Quilter v. Attorney-General [PDF] decision, the precursor to the Joslin communication before the committee, discussed the state’s obligation to comply with Article 26 of the ICCPR. Justice Keith concluded that Article 23(2), reflecting traditional heterosexual marriage, was the governing position when set against Article 26. In contrast, Justice Thomas cited the committee’s test for compliance with Article 26 by concluding that the state had failed to advance sufficiently reasonable and objective criteria to justify limiting marriage to opposite-sex couples. Similarly, Justice Sachs on the Constitutional Court of South Africa referred to the state’s obligations under Article 26 in ruling that denial of same-sex marriage was unconstitutional in Minister of Home Affairs v. Fourie. In the legislative context, advocates of same-sex marriage in recent Australian debates on marriage equality have relied extensively on the Article 26 equality guarantee when making submissions before the Senate Committee considering draft marriage equality legislation.

The invocation of Article 26 by national courts is just one example of a dyadic process between the international and domestic law strata in the development of new human rights norms. The committee is emboldened to give more robust interpretations to the Article 26 equality guarantee when it sees state practice moving more and more in the direction of marriage equality. Likewise, national courts can point to the increasingly progressive interpretations being given to Article 26 by the committee when seeking to insulate their decisions from charges of judicial activism, as occurred in response to the original 2008 Supreme Court of California decision holding that the state denial of same-sex marriage violated the equality guarantees of the California Constitution. More practically, committee communications on Article 26 in the context of sexual orientation discrimination canvass similar issues that arise when courts are faced with direct questions on the constitutionality of same-sex marriage. This is particularly the case in the US, where courts conduct Equal Protection analysis that parallels the “reasonable and objective” inquiry under Article 26. When additional consideration is given to US understandings to the ICCPR, there is a persuasive and sound basis for the Ninth Circuit to consider international human rights law when determining the constitutionality of Proposition 8.

Nathan Crombie is currently an LL.M. candidate at Columbia Law School. He earned his undergraduate law and arts degrees from Victoria University of Wellington in New Zealand before working as a solicitor in the private and governmental sectors. His primary areas of interest are public international law and human rights.

Suggested citation: Nathan Crombie, Same-Sex Marriage and International Law in the Ninth Circuit, JURIST – Dateline, Dec. 29, 2011, http://jurist.org/dateline/2011/12/nathan-crombie-marriage.php.