Gay Rights Without Borders
By JOANNE MARINER
|Monday, Feb. 16, 2004|
Twenty-two years after the European Court of Human Rights overturned Northern Ireland's ban on gay sodomy, the U.S. Supreme Court finally caught up. Not only did the Court strike down a state law that criminalized consensual homosexual activity, it even acknowledged the European precedents that had reached the same outcome first.
In what Justice Scalia, writing in dissent, condemned as "dangerous dicta," the Supreme Court's 2003 opinion in Lawrence v. Texas made explicit reference to the rulings of courts outside the United States. Finding precedential support in a string of European cases, the Court noted that "other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct."
While correct in identifying the international trend, the Court, if anything, understated the extent of gay rights advances. As Yale Law School professor and human rights expert Harold Koh told a reporter for Legal Times, the European Court of Human Rights is "eight cases beyond Lawrence" in its gay rights jurisprudence. And it is not only Europe that is making legal progress in protecting gays and lesbians from societal discrimination. In a variety of international fora - from U.N. human rights bodies to South African courts - new ground is being broken on gay rights issues.
A brief review of the most important of these rulings illustrates the broad scope of this international trend.
Sex, the Military, Adoption, Marriage and Pensions: International/Foreign Decisions
In this groundbreaking case, the first major international ruling to protect the rights of lesbian and gays, the European Court found that a criminal prohibition on gay sexual activity - "buggery" and "gross indecency" under the terms of the law -- violated the right to privacy. The Court noted that "members of the public who regard homosexuality as immoral may be shocked, offended or disturbed by the commission by others of private homosexual acts," but such moral outrage does not justify criminalizing consensual sexual behavior.
In two separate cases, the European Court ruled that the United Kingdom's ban on gays in the military violated the right to privacy.
In a case involving two lesbians who wanted to adopt children jointly, the Constitutional Court struck down a law that allowed only married couples to do so. The Court found that the law discriminated on the grounds both of sexual orientation and of marital status. Criticizing the law's failure to recognize the "value and worth" of the parents' relationship to the children, it ordered that the statutes be amended to allow same-sex couples to adopt children on an equal basis with heterosexual couples.
In two landmark cases, the highest courts of two Canadian provinces concluded that denying marriage licenses to same-sex couples violated the equality provisions of the national Charter of Rights and Freedoms. As a remedy for the violation, the courts ordered that gays and lesbians be given the right to marry.
(The British Columbia court initially stayed its ruling for one year, to allow the federal and provincial legislatures to reformulate their definition of marriage. But two months later, when the Ontario court ordered marriage licenses immediately issued in that province, the British Columbia court reversed itself and ordered the ruling implemented immediately.)
The rulings only apply in the two provinces. Yet the national government has indicated that it will not appeal the decisions to the country's Supreme Court, and instead will draft a law to legalize same-sex unions across Canada. It is still unclear whether this will fully legitimate equality in marriage, or offer a parallel but distinct status of "civil unions" for same-sex partners.
In its first decision affirming the partnership rights of same-sex couples, the Human Rights Committee ruled that Australia, in denying pension benefits to the surviving same-sex partner of a war veteran, violated anti-discrimination principles codified in the International Covenant on Civil and Political Rights.
U.S. Courts: Wise To Draw on Foreign and International Precedents
Gays in the military, same-sex marriage, gay adoption -- regional, international and foreign tribunals have addressed all of these questions and more. While Justice Scalia may blindly reject "foreign moods, fads, or fashions," less xenophobic jurists would be well advised to consider the logic and reasoning of these rulings when facing gay rights issues in their own courts.