Why Are U.S. Embassies Prohibited from Explaining Our Country’s Embrace of the Freedom to Marry for Same-Sex Couples as a Fundamental Human Right?

October 20, 2021 – This week, sixty-one House Democrats led by Representatives Castro, Cicilline, and Titus sent a letter to the State Department calling for an end its forced neutrality policy that currently prohibits U.S. embassies from discussing marriage equality abroad. A story in The Hill frames the issue. The Council for Global Equality and Freedom to Marry Global jointly offer these observations.

This outdated policy, which dictates that U.S. embassy personnel speak “neither for nor against” marriage equality, fails to reflect basic American values and has the effect of contributing to stigma and isolation of LGBTQI individuals. Freedom to marry is not something separate from other freedoms and human rights; it is part of the fabric of protection — and the legal, familial, and social inclusion — that all individuals, including those who are LGBTQI, deserve.

Thirty countries around the world, including our own, have affirmed the freedom to marry for same-sex couples. That means there is now a mountain of evidence, expertise, and experience showing that when countries end marriage discrimination, families are helped and no one is hurt. U.S. representatives abroad should be able, indeed encouraged, to share that track record with others working to make similar progress in other countries.

Marriage equality matters for tangible and intangible reasons. The intangible include affirming same-sex couples’ basic human dignity and shared values such as love, commitment, family, inclusion, connection, and freedom. In most countries, marriage also is a prerequisite to a range of rights and protections, including inheritance rights and other earned benefits; preferential tax benefits and insurance rates; child custody and tax credits; shared financial rights and responsibilities; and rights to take decisions on behalf of incapacitated partners or family members. Government failure to make marriage available to same-sex couples is thus discriminatory on its face — and evidence that basic standards of democratic practice are being ignored. Refusal to affirm the equal freedom to marry puts governments in the role of inciting stigma and division while inflicting direct legal and economic harm.

From this perspective alone, U.S. embassies should engage proactively in explaining to foreign countries the reasons for which our Supreme Court has affirmed the freedom to marry for same-sex couples as for different-sex couples — and why marriage equality falls within the constructs of democratic governance. We also believe, however, that the State Department’s advocacy should address this issue from a human rights perspective: specifically, that marriage equality, which is a constitutional right in our country, is increasingly being recognized as a human right by national and international courts. All major human rights instruments include some version of the right to form a family and to access marriage. Nowhere in those treaties are those rights restricted to heterosexuals. The United States should cheer recent legal opinions recognizing marriage equality for same-sex couples as a means of lending weight to this growing precedent.

In 2017, the Costa Rica-based Inter-American Court of Human Rights issued an advisory opinion holding that the protection of same-sex families is a human right protected by the American Convention on Human Rights. While not binding on the United States, the ruling, together with related decisions by the European Court of Justice and an increasing number of national courts, should be celebrated and uplifted by our U.S. diplomats abroad, recognizing that they closely parallel the U.S. Supreme Court’s own decision affirming the freedom to marry for same-sex couples in the United States. Our diplomats should be willing and able to point to these legal trends as an emerging human rights norm that has the enthusiastic support of the U.S. government, alongside diverse democracies around the globe.

For these reasons, our country should stand on the side of marriage equality, particularly in countries where ending marriage discrimination is being actively engaged, but also as part of our normal democratic and human rights advocacy. Basic principles such as equality under the law, recognition of marriage and family, combatting sex discrimination, the well-being of children, religious freedom, and freedom of movement all argue for the United States to join other nations in vocal support of marriage equality — and they also undergird the case for marriage equality as a human right under international law.

We deeply appreciate President Biden’s historic leadership in explaining the case for the freedom to marry here in the United States. We believe the State Department’s lack of support for marriage equality is now out of step with the Biden Administration’s own self-declared priorities. Indeed, President Biden issued a Memorandum in February that articulated the values enumerated above and called on all federal agencies to rescind “inconsistent” policies to ensure that we are at the “forefront” of LGBTQI peoples’ struggle. “Neither for nor against” is not at the forefront; it is outdated and sends an adverse message. The current policy is inconsistent with the President’s vision and his commitments to the LGBTQI community, and it should be updated as a priority.

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