The United States Constitution should be interpreted without appeal to foreign law or international norms. In his dissenting opinion in Atkins v. Virginia, Justice Antonin Scalia famously noted that our Constitution and laws should not be interpreted in light of “the practices of the ‘world community,’ whose notions of justice are (thankfully) not always those of our people.” Jeremy Rabkin wrote in a Heritage Legal Memorandum that appealing to foreign laws and practices is a “freewheeling” approach that supports the view that the Constitution is “open-ended, evolving, subject to new trends—so almost anything, anywhere might be relevant to reinterpreting it.”
While the justices should resist the activist use of “transnational law” in interpreting the original meaning of our Constitution, some still do. If the Supreme Court justices—wrongly—look to foreign law to resolve the question of whether marriage may be defined as the union of one man and one woman, they will discover that the traditional definition of marriage is almost universally followed.
An amicus brief filed with the Court by a group of international jurists and academics makes just that case.
These scholars point out that not until the year 2000 did any political body recognize same-sex unions as marriages, and even today only 12 jurisdictions outside of the United States do so. They argue that “same-sex marriage is not required by international human rights norms”:
The European Court of Justice, the European Court of Human Rights, the United Nations Human Rights Committee, the French Constitutional Court, the Italian Constitutional Court, the German Federal Constitutional Court, and the New Zealand Court of Appeal have all rejected the notion that same-sex marriage is a constitutional or human right. [Emphasis added.]
As the debate over the redefinition of marriage reaches the Supreme Court this month, the near universality of marriage as the union between a man and a woman reinforces the argument for marriage. The international scholars’ brief focuses on the views held by the majority of international authorities and the necessity of considering the procreative purpose of marriage when considering redefining it.
Besides the 12 jurisdictions outside of the United States that recognize same-sex relationships as marriages, the scholars write:
All of the rest retain the understanding of marriage as the union of a man and a woman. That is, taking the number of member states of the United Nations as the reference point, fifteen times more countries disallow same-sex marriage than allow it. Additionally, many nations have adopted constitutional provisions defining marriage, explicitly or implicitly, as the union of a husband and wife—more nations than have recognized any form of same-sex union.
Furthermore, several countries uphold marriage as the union of a husband and wife while also extending legal benefits to those in same-sex relationships, similar to the state constitutional provision passed by the people of California.
The scholars produce evidence in their brief of “the importance of maintaining a link between marriage and procreation.” The fundamental purpose of marriage is to bring together a man and woman as husband and wife to be a mother and father to a child. The importance of marriage and of both a mother and father as the ideal for the upbringing of a child is widely recognized in America as well as internationally:
In numerous countries—including those whose constitutions implicitly or explicitly define marriage as a relationship between one man and one woman—family, children, and parenting are all linked in the constitutional sense.
Understanding marriage as the union of a man and a woman is not isolated to the United States—it is a view supported and affirmed by the majority of the international community. The justices should resist the temptation to rely on international norms in interpreting our Constitution to determine the definition of marriage, but if they do, they will find a clear consensus in favor of the traditional definition of marriage.
Sophie Giberga is currently a member of the Young Leaders Program at The Heritage Foundation. For more information on interning at Heritage, please click here.
*CORRECTION: An earlier version of this blog omitted the first two paragraphs.