Supreme Court Recieves Many Amicus Briefs in Marriage Cases

From the WASHINGTON POST, Apr. 6, 2015  — "The world will be watching when the Supreme Court hears arguments this month about same-sex marriage. But will the court be watching the world?

Two impressive friend-of-the-court briefs have urged the justices to look abroad before deciding whether there is a nationwide right to same-sex marriage. The briefs agree that there is something to be learned from the experiences of the rest of the world. But they differ about what the lesson is.

To hear one side tell it, there is "an emerging global consensus among liberal democracies" in favor of same-sex marriage. The other side responds that most of the world, including nations with otherwise strong support for gay rights, rejects same-sex marriage.

Justice Anthony M. Kennedy, right, has cited foreign decisions when explaining Supreme Court rulings in past cases, and he is considered the  primary audience for briefs about how other countries view the legalization of same-sex marriage. Credit Gabriella Demczuk for The New York Times.

The brief urging the court to find a constitutional right to same-sex marriage was filed by six prominent American law professors, including Harold H. Koh, a former dean of Yale Law School who served as the State Department's top lawyer in the first term of the Obama administration.

The brief on the other side was filed by Lynn D. Wardle, a law professor at Brigham Young University, on behalf of 54 experts in international law from 27 countries.

The two sides share some common ground. They agree on the obvious point that foreign decisions are not binding precedent and on the more contested view that what foreign courts have said may nonetheless be instructive.

The briefs also agree on the basic facts, saying roughly 20 countries allow same-sex marriage. Professor Koh's brief lists Argentina, Belgium, Brazil, Canada, Denmark, England, Finland, France, Iceland, Luxembourg, the Netherlands, New Zealand, Norway, Portugal, Scotland, South Africa, Spain, Sweden, Uruguay and Wales. Professor Wardle's brief counts England, Scotland and Wales only once, as the United Kingdom, and says same-sex marriage in Finland has been approved, but in a law that takes effect in 2017. Is that, as Professor Koh said, evidence of a growing consensus among liberal democracies? Or does it demonstrate that, as Professor Wardle wrote, "any form of same-sex marriage has only been adopted by 17 of the 193 member states of the United Nations"?...". Read the entire article at http://www.nytimes.com/2015/04/07/us/supreme-court-asked-to-look-abroad-for-guidance-on-same-sex-marriage.html?hp&action=click&pgtype=Homepage&module=second-column-region&region=top-news&WT.nav=top-news&_r=0.

The Post discusses just two of the many amicus briefs submitted to the court, but whatever the High Court decides will impact family restoration for generations to come.





1 comment:

  1. One brief that I found particularly compelling is the Amicus Brief from the Foundation for Moral Law. The brief argues that the legalization of same-sex marriage has to come "from the bottom up, through the elected voices of the people at the local, state, and federal levels." Same-sex marriage can not be imposed by the Supreme Court because it is not clearly required by the United States Constitution. If the Supreme Court required states to endorse same-sex marriage it would be an "unprecedented step of judicial activism. Even if there is an emerging consensus in favor of same-sex marriage, that does not mean that same-sex marriage is something that is required by the Constitution. It should be left up to the individual states to decide whether they want to legalize it.

    The brief can be found at: http://sblog.s3.amazonaws.com/wp-content/uploads/2015/04/14-55614-56214-57114-574bsacFoundationForMoralLaw.pdf