Marriage Rights Are Spreading Across the Americas: Will the U.S. Supreme Court Take Notice?

by Mark Bromley, Council for Global Equality

Earlier this month, a federal District Court judge in California, in the now-famous case of Perry v. Schwarzenegger, ruled that California’s Proposition 8 is unconstitutional.  The judge found that Proposition 8, which was adopted by California voters to overturn a state Supreme Court decision and strip same-sex couples of their right to marry, is unconstitutional on both due process and equal protection grounds.  Most legal observers expect the case to end up before the U.S. Supreme Court in a few years.  If it does, the U.S. Supreme Court might just find itself looking to our neighbors to our north and south, and considering two important marriage-related cases decided this week in Mexico and Costa Rica.

The notion that the U.S. Supreme Court might take stock of this shifting landscape in our hemisphere is not as surprising as it might sound.  In the most important LGBT case ever decided by the U.S. Supreme Court, the 2003 case of Lawrence v. Texas that overturned earlier Supreme Court precedent to strike down a homosexual sodomy law in Texas, Justice Kennedy, writing for the Court majority, looked to the “values we share with a wider civilization” to help decide the case.  He noted that other nations had already strongly affirmed “the protected right of homosexual adults to engage in intimate, consensual conduct.”  He cited a leading human rights case decided more than 20 years earlier in Europe, and a string of subsequent European cases, before concluding that there was no particular reason to believe that in our own country, “the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.”  He concluded, instead, that LGBT Americans are entitled to private lives, and that “the State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”  Perhaps Justice Kennedy, or one of his colleagues, writing the majority opinion when the Perry case finally lands on the Court’s door, will cite this time to a string of cases from our neighbors in North and South America.

Canada, the first country in the hemisphere to recognize same-sex marriage for its citizens—and for non-citizens like me who traveled there to get married—did so based on a 2004 case in the Supreme Court of Canada and a 2005 Civil Marriage Act.  Argentina, the second country in our hemisphere to legalize same-sex marriage, did so this July by an act of congress.  And just this week, two cases were decided, one in Mexico and one in Costa Rica, that lend unique perspective to the Perry decision and its future consideration in the Supreme Court.

In December of last year, Mexico City legalized same-sex marriages for its federal district.  This week, the Mexican Supreme Court ruled that all other states in Mexico must recognize the marriages performed in Mexico City.  The 31 states in Mexico need not perform same-sex marriages in their own state, but they must recognize the marriages performed in Mexico City.  The New York Times quotes Justice Arturo Zaldívar as asking what happens to a same-sex couples that goes to another state.  “Does this marriage disappear? They go on vacation and they’re no longer married?”  That’s an equally good question for our Supreme Court to ask in the Perry case, and in a related set of same-sex marriage cases that are also working their way through the federal courts in Massachusetts.

Also this week, the Constitutional Court in Costa Rica blocked a referendum scheduled for December that would have allowed the citizens of Costa Rica to decide whether same-sex civil unions should be allowed in their country.  The Costa Rican Court, in a 5-2 decision, said that the rights of minorities should not be subject to majority vote by referendum, thereby throwing the decision back to the legislature.  While the case was about civil unions and not marriage, that basic logic animates the decision in the Perry case and will surely be an important focus in any Supreme Court inquiry.

The road to our Supreme Court is long and the decision in the Perry case is uncertain, but if Justice Kennedy, who is considered an important swing vote, looks once again to the “values we share with a wider civilization,” he will surely see that the long arc of the moral universe is bending toward marriage equality across our hemisphere and beyond.  One can only hope that this will be as apparent to Justice Kennedy as it is to so many of us in the LGBT community.

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