Florida Journal of International Law

Volume 28 Issue 2 Article 3

January 2016

Human Rights, Gay Rights, or Both? International Human Rights

Law and Same-Sex Marriage
Jessica Brown

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Recommended Citation
Brown, Jessica (2016) "Human Rights, Gay Rights, or Both? International Human Rights Law and Same-
Sex Marriage," Florida Journal of International Law: Vol. 28 : Iss. 2 , Article 3.
Available at: https://scholarship.law.ufl.edu/fjil/vol28/iss2/3

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 Brown: Human Rights, Gay Rights, or Both? International Human Rights Law

HUMAN RIGHTS, GAY RIGHTS, OR BOTH?

INTERNATIONAL HUMAN RIGHTS LAW AND
SAME-SEX MARRIAGE

JessicaBrown*

I. INTRODUCTION ................................ ..... 218

II. BACKGROUND: PROMOTING POSITIVE LGBT RIGHTS ................ 219

III. THE SIGNIFICANCE OF MARRIAGE .............. ......... 221

IV. SAME-SEX MARRIAGE AS A RIGHT ................. ..... 224

A. The Right to Marry in the ICCPR ............ ...... 225
B. The Right to Same-Sex Marriagein the ICCPR.... .... 226

V. SAME-SEX MARRIAGE As RECOGNIZED BY EMERGING

CUSTOMARY LAW ...................................... 228
A. South Africa ..................................... 230
B. South America............................... 232
C. Europe.................................... 233
1. The European Court of Human Rights .............. 233
2. Individual European Union Members .............. 235
D. South Asia .......................................
237
1. India ....................................... 237
2. Nepal.......................................238
E. Emerging Customary InternationalLaw..... ....... 238

VI. CONCLUSION: PROMOTING POSITIVE LGBT RIGHTS .... ..... 239

"The struggle to end discrimination against lesbian, gay, bisexual, and

transgender persons is a global challenge, and one that is central to the
United States' commitment to promoting human rights."
_President Barack Obama, December 6, 2011

* Jessica Brown received her J.D. from the University ofNevada, Las Vegas, William S.
Boyd School of Law in 2016. The Author would like to thank Gary Chartier, J.D., Ph.D. for his
comments, suggestions, and encouragement. The Author would also like to thank J. Caleb
Donaldson, J.D. for his comments and encouragement in the first iterations of this article.
217

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 Florida Journal of International Law, Vol. 28, Iss. 2 [2016], Art. 3

218 FLORIDA.JOURNAL OFINTERNATIONAL LAW [Vol. 28

I. INTRODUCTION

On December 6, 2011, President Barack Obama announced a White

House initiative to further "advance the human rights of lesbian, gay,
bisexual and transgender [LGBT] persons" through U.S. diplomacy and
foreign assistance. The White House directed U.S. agencies to "report on
[the] progress" of nations to combat homophobia, protect the vulnerable,
and fight LGBT discrimination.' In 2012, the U.S. Agency for
International Development (USAID) announced a strategy designed to
prevent and respond to gender-based violence globally. 2 The report
suggested that the United States intended to promote LGBT rights using
economic incentives. Although the Obama administration declined to
3
specify how aid will be tied to national practices abroad, it made clear
that it considered the values and interests of the United States to be
4
advanced through the international promotion of LGBT rights.
International law doctrines related to aspects of gay rights, notably
marriage equality,' continue to develop. In this Article, I examine the
international legal basis for marriage equality as a human right.
After a brief introductory discussion of international human rights in
theory and in U.S. foreign policy, I go on to discuss the background to
the promotion positive LGBT rights, the significance of marriage as a
legal and cultural institution, and key reasons LGBT persons seek the
benefits of marriage. I go on to examine same-sex marriage within
international legal frameworks-the International Convention on Civil

1. Presidential Memorandum-International Initiatives to Advance the Human Rights of

Lesbian, Gay, Bisexual, and Transgender Persons, OFFICE OF THE PREss SECRETARY, THE WHITE
HOUSE (Dec. 6, 2011), https://www.whitehouse.gov/the-press-office/2011/12/06/presiden tial-
memorandum-intemational-initiatives-advance-human-rights-1.
2. United States Strategy to Prevent and Respond to Gender-based Violence Globally,
USAID, http://www.state.gov/documents/ organization/1 96468.pdf (last visited May 3, 2013).
3. Id. at 33; Eyder Peralta, U.S. Says It Will Use Foreign Aid To Promote Gay Rights,
NATIONAL PUBLIC RADIO (Dec. 6, 2011, 4:17 PM) http://www.npr.org/blogs/thetwo-way/
2011/12/06/143221630/u-s-says-it-will-use-foreign-aid-to-promote-gay-rights (stating "The New
York Times reiterates that it's not yet clear whether the U.S. will withhold foreign aid from
countries with poor records, but among those that could face some pressure from the U.S. are
allies like Saudi Arabia and Afghanistan, which criminalize homosexuality."); see also Steven
Lee Meyers & Helen Cooper, US. to Aid Gay Rights Abroad, Obama and Clinton Say, N.Y.
TmES (Dec. 6, 2011), http://www.nytimes.com/2011/12/07/world/united-states-to-use-aid-to-
promote-gay-rights-abroad.html (stating "Neither Mr. Obama nor Mrs. Clinton specified how to
give the initiative teeth. Caitlin Hayden, the National Security Council's deputy spokeswoman,
said the administration was "not cutting or tying" foreign aid to changes in other nation's
practices. Still, raising the issue to such prominence on the administration's foreign policy agenda
is important, symbolically, much like President Jimmy Carter's emphasis on human rights.").
4. I use the terms "gay," "LGBT" and "same-sex" interchangeably throughout this
Article.
5. 1 will use the terms "same-sex marriage" and "marriage equality" throughout this
Article to refer to the marriage of two people of the same gender.

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 Brown: Human Rights, Gay Rights, or Both? International Human Rights Law

2016]1 HUMAN RIGHTS, GAY RIGHTSOR BOTH? 219

and Political Rights (ICCPR) and emerging Customary International Law

(CIL). Finally, I argue that the United States and other countries with
international influence should advocate not merely the protection of
LGBT persons against criminal prosecution and repression based on
sexual preference but also the protection of marriage equality as a crucial
source of legal and cultural benefits for LGBT persons.

II. BACKGROUND: PROMOTING POSITIVE LGBT RIGHTS

Presidential administrations have used compliance with human rights

law as predicates for the delivery of international aid. The U.S.
Department of State releases an annual "Trafficking in Persons" report in
which countries are rated based on their efforts to reduce or eliminate
human trafficking. The World Bank then uses the information in the
report to approve or deny aid.6 Countries with emerging economies have
a great incentive, therefore, to take steps to ameliorate trafficking.,
Significantly, the Obama administration has not specified what state
practices, discriminatory or beneficial, are to be included in the criteria to
evaluate countries on rights afforded to LGBT persons. The U.S. Agency
for International Development (USAID) published reports based on "core
principles" that "advance the freedoms and security of LGBT people"
that the agency itself established.' Meanwhile, U.N. Member States have
made significant efforts in the General Assembly to end discrimination
against lesbian, gay, bisexual, and transgendered (LGBT) persons.8 A
total of 96 Member-States sponsored a resolution to combat violence and&
discrimination based on sexual orientation and gender. 9 And, 113
member countries have legalized consensual homosexual acts.' 0
Countries that continue to criminalize same-sex relations risk criticism
from the United Nations, the United States, and Europe."

6. See generallySocial Development Notes: Conflict, Crime and Violence (2009), WORLD
BANK, http://siteresources.worldbank.org/EXTSOCIALDEVELOPMENT/Resources/244362-12
39390842422/6012763-1239905793229/HumanTrafficking.pdf (last visited May 3, 2015)
[hereinafter WORLD BANK].
7. LGBT Vision for Action, USAID, at ii, http://www.usaid.gov/sites/default/files/
documents/1874/LGBT/o20Vision.pdf (last visited May 2, 2013).
8. Bowers v. Hardwick was overturned by the United States in 2003. Bowers, 478 U.S. at
191 ("[Rlespondent would have us announce . . . a fundamental right to engage in homosexual
sodomy. This we are quite unwilling to do.").
9. UN: Landmark Resolution on Anti-Gay Bias, HUM. RTs. WATCH (Sept. 26, 2014),
http://www.hrw.org/news/2014/09/26/un-landmark-resolution-anti-gay-bias.
10. Id.
11. Fact Sheet: Working to Advance the Human in Housing Rights of Lesbian, Gay,
Bisexual, and Transgender (LGBT) Persons Globally, OFFICE OF THE PRESS SECRETARY, THE
WHITE HOUSE (Dec. 6, 2011), https://www.whitehouse.gov/the-press-office/2011/12/06/fact-
sheet-working-advance-human-rights-lesbian-gay-bisexual-and-transge; WORLD BANK, supra

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220 FLORIDA JOURNAL OF INTERNATIONAL LAW [Vol. 28

Yet, questions remain as to where human rights and LGBT rights

intersect, where LGBT rights are concomitant with human rights, and
where LGBT interests fall outside the human rights framework.
According to the U.N. Charter, human rights are universal, inalienable,
indivisible, and interdependent. 12 In other words, human rights apply to
all human beings; human rights cannot be taken away by the state or
others; and, in principle, no human right is more important than another
human right. The Universal Declarationof Human Rights (DHR) and
subsequent treaties, conventions, covenants and pacts, do not establish
human rights because rights are inherent entitlements possessed by all
human beings. Rather, these documents describe and guarantee human
rights. 13
British philosopher Isaiah Berlin parsed rights into positive and
negative categories. According to Berlin, negative rights include the right
to be left alone or without interference.1 4 Since 2008, the General
Assembly has voted on resolutions and declarations that have focused
primarily on negative rights such as protecting LGBT persons from
violence and discrimination." The United Nations encourages member
countries to (1) protect LGBT persons from homophobic and transphobic
violence, (2) decriminalize private sexual conduct between same-sex
consenting adults, (3) prohibit discrimination on the basis of sexual
orientation and gender in housing and employment, and (4) allow for

note 6.
12. Human Rights, Sexual Orientation and Gender Identity, U.N. GENERAL ASSEMBLY
(Sept. 22, 2014), availableat http://daccess-dds-ny.un.org/doc/IJNDOC/GEN/Gl 1/148/76/PDF/
Gil 14876.pdfOpenElement.

Recalling the universality, interdependence, indivisibility and interrelatedness of

human rights as enshrined in the Universal Declaration of Human Rights and
consequently elaborated in other human rights instruments, such as the
International Covenant on Economic, Social and Cultural Rights, the
International Covenant on Civil and Political Rights and other relevant core
human rights instruments ...

Id.
13. On its own, a document does not guarantee rights. Government actors and individuals
choose to implement putative guarantees. Thus, institutions and individual actors play integral
roles with regards to marriage.
14. Isaiah Berlin, Two Concepts of Liberty, FOUR ESSAYS ON LIBERTY, at 7-8,
https://www.wiso.uni-hamburg.de/fileadmin/wiso-vwl/johannes/Ankuendigungen/Berlintwoc
onceptsofliberty.pdf (last visited May 3, 2013).
15. In Turnaround, US signs UN Gay Rights Document, Y NET NEWS.COM (Mar. 18, 2009,
8:32 PM), http://www.ynet.co.il/english/Ext/Comp/ArticleLayout/CdaArticlePrintPreview/l,
2506,L-3688718, 00.html; A Timeline: LGBT Rights and InternationalOrganizations,SOUTHERN
POVERTY LAW CENTER (July 2013), http://www.splcenter.org/get/20informed/publications/
2
DangerousO/o2OLiaisons/A%2OTimeline%3A%20LGBT/2oRights%2Oand%20International%
OOrganizations.

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 Brown: Human Rights, Gay Rights, or Both? International Human Rights Law

2016]1 HUMAN RIGH15, GAYRIGHTSOR BOTH? 221

freedom of expression, association and assembly of LGBT persons.16

On the other hand, Berlin explained that a positive liberties derive
"from the wish on the part of the individual to be his own master," and
equal to others.17 When the U.S. Supreme Court refers to the
"fundamental right to marry," the Court invokes the language of positive
liberties, thus obliging the state to provide citizens the option to marry.1 8
The most prominent claim for positive LGBT liberties is the right to
marry. 19 Legal theorist Cass Sunstein writes "[L]ike the right to vote, the
right to marry is the right of equal access to a publically-administered
institution." 20 The argument for same-sex marriage is thus: if marriage is
a positive right in many countries around the world because marriage
confers legal, social and financial benefits; then the fundamental human
right of equal treatment necessarily requires that same-sex marriage must
also be legal.

III. THE SIGNIFICANCE OF MARRIAGE

"According to [Paula] Ettelbrick, same-sex marriage would

undermine the goals of gay liberation; affirming gay and lesbian identity
and relationship diversity . . . Marriage, by legally distinguishing
legitimate and illegitimate relationships, wrongly discourages
relationship diversity ... " 2 1
-Elizabeth Brake

Gay marriage is not without controversy, even among LGBT rights

activists. Queer theorists, radical feminists, and libertarians like Judith
Butler, Martha Fineman, and David Boaz, reject gay marriage and
advocate for the abolition of marriage in general.2 2 Marriage abolitionists
argue the institution, whether or not it is recognized by the state,
reinforces gender roles that, historically, gave husbands broad control

16. Born Free andEqual: Sexual Orientationand GenderIdentity in InternationalHuman

Rights Law, U.N. OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS at 13,
http://www.ohchr.org/Documents/Publications/BomFreeAndEqualLowRes.pdf (last visited May
3,2015).
17. Berlin, supra note 14, at 8.
18. See Frank B. Cross, The Error ofPositive Rights, 48 U.C.L.A. L. REv. 857 (2001).
19. JORDI DiEz, THE POLITICS OF GAY MARRIAGE IN LATIN AMERICA: ARGENTINA, CHILE
AND MEXICO 43 (2015).
20. Cass R. Sunstein, The Right to Marry, 26 CORDOzO L. REV. 2081 (2005).
21. ELIZABETH BRAKE, MINIMIZING MARRIAGE: MARRIAGE, MORALITY AND THE LAW 120
(2012).
22. Gregg Strauss, Why the State Cannot "Abolish Marriage"A PartialDefense ofLegal
Marriage Based on the Structure of Intimate Duties, 90 INDIANA L. REv. (working draft) at 3,
http://scholarship.law.duke.edu/cgi/viewcontent.cgi?articie=6033&context-faculty_scholarship.

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222 FLORIDA JOURNAL OF INTERNA TIONAL LAW [Vol. 28

over wives. Marriage was a legal mechanism granted to men that gave
men exclusive control over procreation, cohabitation, and children within
the family. 2 3 Radical feminists such as Catherine Mackinnon maintain
that marriage remains the primary mechanism used to control female
sexuality, property, and children. 2 4 Additionally, queer theorists suggest,
marriage attempts to impose a social structure not only deleterious or
inapplicable to gay intimates, but also unnecessarily restrictive with
regards to perceived heterosexual norms such as monogamy.
Nonetheless, LGBT persons overwhelmingly support marriage
equality. Research in this area suggests the broad support for same-sex
marriage among LGBT persons is for two primary reasons: marriage
automatically grants practical legal and financial privileges to couples,
25
and marriage provides social benefits such as community recognition.
In fact, Article 23 the International Covenant on Civil and Political Rights
(ICCPR) places a positive obligation on nations to protect marriage
because, according to the language of the ICCPR, the "family is the
natural and fundamental group unit of society."2 6 Thus, states may not
27
interfere with marriage or the family without a legitimate purpose.
When nation states fail to recognize same-sex marriage, those nation-
states fundamentally treat LGBT persons unequally due to the automatic
advantages conferred to couples upon marriage. Most nations confer
considerable privileges to couples directly upon the act of getting
married; this affords couples economic advantages in addition to legal
rights over their non-married counterparts. Marital rights may include the
right to precedence in intestacy, immigration rights for a spouse, medical
and health benefits, tax benefits, automatic parental rights for both
spouses for any child born within a marriage, and the right to social
security benefits earned by a deceased spouse, among dozens of other

23. Mary Anne Case, Marriage Licenses (lecture at 1765), http://www.law.uchicago.edu/

files/files/case-marriagelicenses.pdf.
24. See KATHERINE MACKINNON, TOWARD A FEMINIST THEORY OF THE STATE 13-36
(1989); see FeministPerspectives on Reproduction and the Family, STANFORD ENCYCLOPEDIA OF
PHILOSOPHY (Oct. 21, 2013), http://plato.stanford.edu/entries/feminism-family/.
25. See Aaron Blake, Meet the LGBTAmericans Who Oppose Gay Marriage,WASH. POST
(Jan 27, 2015), http://www.washingtonpost.com/blogs/the-fix/wp/2015/01/27/meet-the-igbt-
americans-who-oppose-gay-marriage/ (stating 93% of LGBT Americans support same-sex
marriage); KATRINA KIMPORT, QUEERING MARRIAGE: CHALLENGING FAMILY FORMATION IN THE
UNITED STATES 48 (2013).
26. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, G.A. res. 2200A (XXI),
21 U.N. GAOR Supp. (No. 16) at 173, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into
force Mar. 23, 1976), https://treaties.un.org/pages/viewdetails.aspx?chapter-4&src-treaty&mtds
g_no=iv-4&lang-en [hereinafter ICCPRI; UNIVERSAL DECLARATION OF HuMAN RIGHTS, G.A.
Res. 217A (III), U.N. Doc. A/810, at 71 (1948); see GUDMUNDUR S. ALFREDSSON & ASBJ0RN
EIDE, THE UNIVERSAL DECLARATION OF HuMAN RIGHTS: A COMMON STANDARD OF ACHIEVEMENT
343 (1999).
27. Id.

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 Brown: Human Rights, Gay Rights, or Both? International Human Rights Law

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legal and financial privileges. 28 Marriage also affords considerable

economic stability. Married couples tend to be "better off' than
unmarried peers, and marriage is "about as good a predictor of economic
success as are education, race and ethnicity." 29
The act of getting married also provides social benefits and a sense of
legitimacy to a couple's relationship. The South African Constitutional
Court stated in Minister ofHome Affairs v. Fouriethat same-sex marriage
couples should be able to "enjoy the same status, entitlements and
responsibilities accorded to heterosexual couples through marriage" and
recognized that, contrary to their treatment historically, recognizes that
LGBT persons constitutionally have "inherent dignity and are ... worthy
of the human respect possessed by and accorded to heterosexuals and
their relationships." 30 The social benefits associated with marriage
include the presumption that a married couple share intimacy, domestic
and economic cooperation, and a mutual commitment to sustaining the
relationship. In Europe, social welfare policies grant the same rights,
privileges and benefits in law to children of unmarried parents as to
children of married parents; thus, marriage rates are lower in Europe than
in countries that do not confer those rights. 3 1 Yet, most Europeans will
marry at some point because of the social benefits conferred upon a
married couple. 3 2 Same-sex couples seek these intangible benefits as

28. See KIMPORT, supra note 25; Letter from Dayna K. Shah, Associate General Counsel,
U.S. General Accounting Office, to Senator Bill Frist, GAO-04-353R DEFENSE OF MARRIAGE
ACT: UPDATE TO PRIOR REPORT (Jan. 2004), http://www.gao.gov/new.items/d04353r.pdf; Strauss,
supra note 22, at 9.
29. Andrew Yarrow, Falling MarriageRates Reveal Economic Fault Lines, N.Y. TIMES
(Feb. 6, 2015), http://www.nytimes.com/2015/02/08/fashion/weddings/falling-marriage-rates-
reveal-economic-fault-lines.html.
30. Minister of Home Affairs v. Fourie, SA 524 (CC), at 15 (Dec. 1, 2005),
http://www.saflii.org/za/cases/ZACC/2005/19.html.
31. Sarah Lyall, ForEuropeans, Love, Yes; Marriage,Maybe, N.Y. TIMES (Mar. 24, 2002),
http://www.nytimes.com/2002/03/24/world/for-europeans-love-yes-marriage-maybe.html. The
German government provides E184 for the first two children, E190 for the third child, and 6215
for every subsequent child per month. Like most European countries, low-income parents in
Germany receive significantly more benefits including childcare and supplementary education
benefits. Other examples include Norway, which provides 6,000 Kroner per month and childcare;
France, which provides C129.99 - E166.55 or more per month depending on the number of
children, as well as free childcare and early education; and Ireland, in which the benefit is between
C135- C1080 per month depending on the number of children. Child Benefit and Cash-for-Care
Benefit to Foreign Employees in Norway, NAV, (Nov. 30, 2015), https://www.nav.no/en/Home/
Benefits+and+services/Relatert+informasjon/Child+benefit+and+cash+benefit+-+Foreign+emp
loyees+in+Norway.194616.cms; Child Benefit, Citizens Information, Budget 2016, http://www.
citizensinformation.ie/en/social_welfare/social welfare_payments/socialwelfarepayments to
families and children/childbenefit.html; Help and Advice for EU Nationals and Their
Families, YOUR EUROPE, http://europa.eu/youreurope/citizens/family/childrenbenefits/indexen.
htm.
32. Help and Advice for EU Nationals and Their Families, supranote 31.

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224 FLORIDA JOURNAL OF INTERNA TIONAL LAW [Vol. 28

well.3 3
Concerns that motivate support for the abolition of state-linked
marriage seem less germane today in the United States, Canada, Europe,
Australia, New Zealand, South Africa, 3 4 many other countries around the
world. In these countries, the state no longer imposes rigid social norms
on marriage. Rather, a married couple is free to

have or not have sex, vaginal or not, procreative, contracepted, or

otherwise; to be faithful or not, to divorce and remarry, to
commingle their finances or keep them separate, to live together
or separately, to differentiate roles or share all tasks, to publicize
their relationship or be discreet about it, while still having their
commitment to one another recognized by third parties including
the state. 35

When individuals enter the modern institution of legal marriage, the

state affords those individuals a range of legal and financial privileges,
even as it declines to enforce a number of the perceived cultural norms
traditionally associated with marriage. 3 6 Therefore, marriage abolitionist
arguments that focus on the inflexibility of the state definition of marriage
are less persuasive than they arguably once were because, within a legal
marriage, individuals are free to negotiate their own marital
arrangements. Legal marriage for same-sex couples eliminates the need
to purchase financial services required to secure their intestacy rights,
parental rights, and other benefits, while allowing couples to forge their
own intimate agreements. 3 7

IV. SAME-SEX MARRIAGE AS A RIGHT

"[G]ay rights are human rights. Human rights are gay rights."
-Secretary of State, Hillary Rodham Clinton December 6, 201138

The guiding authority for marriage as a fundamental right in

33. Id.
34. Polygamy is a common practice in South Africa. The President of South Africa is a
partner in a polygamous marriage.
35. Case, supra note 23, at 1765.
36. Noting that the state does not interfere with marriages in most democratic countries.
37. Bernice Napach, Does Gay Marriage Ruling End a FinancialPlanningNiche?, THINK
ADVISOR (June 29, 2015), http://www.think advisor.com/2015/06/29/does-gay-marriage-ruling-
end-a-financial-planning.
38. Johnathan Capehart, Clinton's Geneva Accord: 'Gay Rights are Human Rights,'
WASH. POST (Dec. 7, 2011, 1:15 PM), http://www.washingtonpost.com/blogs/post-partisan/
post/clintons-geneva-accord-gay-rights-are-human-rights/2011/03/04/gIQAPUipcO blog.html.

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 Brown: Human Rights, Gay Rights, or Both? International Human Rights Law

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international human rights law can be found in the International Covenant

on Civil and Political Rights (ICCPR) and the Universal Declaration of
Human Rights (UDHR). 39 The United States and all but 7 other Member-
States of the United Nations, notably China and Cuba, are signatories. 4 0
Taken together, the UDHR and the ICCPR provide the basis for roughly
90 state constitutions and even more treaties, grounding a broad range of
human rights enactments around the globe.4 1
The ICCPR obliges the signatories to protect "all persons... against
discrimination on any ground such as .. . sex.' 4 2 Significantly, the ICCPR
recognizes the fundamental right to marriage.43 However, the U.N.
Human Rights Committee (HRC), a quasi-judicial committee within the
United Nations comprised of independent experts that monitors the
implementation of the ICCPR, has held that gay marriage is not a human
right despite the enumerated fundamental right to marry. 44
Discrimination against LGBT persons is a violation of human rights, and
the right to marry is a fundamental right inherent to all human beings, yet
according to the HRC combining the right to be equal and the right to
marriage does not make same-sex marriage a fundamental human right.

A. The Right to Marry in the ICCPR

The right to marry is a fundamental human right memorialized in

Articles 23 and 26 of the ICCPR.4 5 Article 23 of the ICCPR states "(1)
The family is the natural and fundamental group unit of society and is
entitled to protection by society and the State," and "(2) [t]he right of men
and women . .. to marry and to found a family shall be recognized." 4 6
Moreover, Article 23, § 4 states that member nations "[s]hall take
appropriate steps to ensure equality of rights and responsibilities of
spouses to marriage." 47

39. ICCPR, supra note 26, at 173; UNIVERSAL DECLARATION OF HUMAN RIGHTS, G.A. Res.
217A (111), U.N. Doc. A/810 at 71 (1948).
40. Chapter IV, INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (Listing of
signatories and Countries that have ratified the ICCPR), https://treaties.un.org/pages/viewdetails.
aspx?chapter-4&src-treaty&mtdsg no=iv-4&lang-en [hereinafter ICCPR Accession]; ICCPR,
supra note 26.
41. H. STEINER ET AL., INTERNATIONAL HUMAN RIGHTS IN CONTEXT 74 (2007).
42. ICCPR, supra note 26.
43. Id.
44. Human Rights Treaty Bodies-Individual Communications, OFFICE OF U.N. HIGH
COMMISSIONER FOR HUMAN RIGHTS, http://www2.ohchr.org/englishibodies/petitions/individual.
htm (last visited Oct. 24, 2016); see Toonen v. Australia, Comm. No. 488/1992, U.N. GAOR
Hum. Rts. Comm., 49th Sess., Supp. No. 40, vol. II, at 235, U.N. Doc. A/49/40 (Mar. 31, 1994)
[hereinafter Toonen]; ICCPR Accession, supra note 40, at 37.
45. ICCPR, supra note 26.
46. Id.
47. Id.

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226 FLORIDA JOURNAL OF INTERNA77ONAL LAW [Vol. 28

B. The Right to Same-Sex Marriagein the ICCPR

48
The HCR has commented that Article 23 is broad rather than narrow.
The equality provision within Article 23, § 4 is gender-neutral, and it does
not specify any characteristics, such as race, religion, or ethnicity, that
states are prohibited to use as bases for denying a couple the right to
marry. Absent such a list, the meaning of the non-discrimination
requirement can be discerned in light of the provisions of Article 26,
which states: "All persons are equal before the law and are entitled
without any discrimination to the equal protection of the law . . . . The
law shall prohibit any discrimination and guarantee to all persons equal
and effective protection against discrimination on any ground such as ...
sex." 49 The HCR's General Comment 19 states that "the concept of the
family may differ in some respects from State to State, and even from
region to region within a State, and that it is therefore not possible to give
the concept a standard definition."5 0 Yet, the HRC does proscribe what a
state cannot do to its citizens in General Comment 19. Among the
prohibitions are "sex-based discrimination" and other "discriminatory
treatment." 5 1
Article 26 of the ICCPR prohibits nation-states from discriminating
based on sexual orientation. Article 26 announces that "all persons are
equal before the law" and that discrimination by a state cannot be based
on sex or "other status." 52 In General Comment No. 18, the HCR observes
5
that Article 26 prohibits discrimination in "any field." ' The HRC is
responsible for determining whether or not a state has discriminated in
54
any field by using "reasonable and objective" criteria. The HRC
explains that "other status" within Article 26 means that non-
discrimination principles are broader than those rights listed in the
covenant. In particular, in 1994, the HCR held in Toonen v. Australia
that prohibition sex discrimination includes a prohibition based on sexual
orientation.56
Similarly, the HCR has held that the language of the ICCPR does not

48. Comment 19, infra note 50.

49. ICCPR, supra note 26.
50. General Comment No. 19, HUMAN RIGHTS COMMITTEE U.N. Doc. 1RI/GEN/1 REV.1
at 28 (1994), https://wwwl.umn.edu/humanrts/gencomm/hrcoml9.htm [hereinafter Comment
19].
51. Id.
52. ICCPR, supra note 26.
53. General Comment No. 18, HUMAN RIGHTS COMMITTEE U.N. Doc. HRI/GEN/1/REV.1
at 28 (1994), https://wwwl.umn.edu/humanrts/gencomm/hrcoml9.htm [hereinafter Comment
18].
54. Id. at 13.
55. See Toonen, supra note 44.
56. Id.

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20161 HUMAN RIGHTS, GAY RIGHTSOR BOTH? 227

preclude the recognition of the right to same-sex marriage.5 7 While the

drafters of the ICCPR chose the phrase "men and women of marriageable
age" to address national age restrictions for marriage, the drafters chose
the gender-neutral term "spouses," which cannot reasonably be construed
to prohibit the recognition of same-sex marriage as an equal right, in the
article that outlines the equality of the individuals who enter into
marriage. It is unlikely that the drafters of the ICCPR in 1970
contemplated same-sex marriage. 5 9 "Men and women of marriageable
age" is not exclusionary, but rather synonymous with "persons." 6 0 The
phrase is not exclusionary because it was a provision concerned with age,
and the phrase was not a reaction to the emergence of same-sex marriage
as a cultural practice.61
While the ICCPR does not preclude recognition by states-parties of
the right to same-sex marriage, the HCR held in 2002 that the ICCPR
does not require the states-parties to recognize same-sex marriage, either.
In Joslin v. New Zealand, the HCR held that member nations may refuse
to recognize same-sex marriages. 6 2 The HCR took into account the
historical context of the ICCPR, as well as the reference to "men and
women" in Article 32.63 The committee did not conduct a "reasonable
and objective" inquiry into denying the right to same-sex marriage
because, the Committee argued, gay couples are free to live like
committed heterosexual couples. 64 The committee held that Articles 23
and 26 must be read to guarantee opposite-sex marriage only because of
the historical context in which the articles were written, and because of

57. See Joslin v. New Zealand, U.N. Doc CCPR/C/75/D/902/1999, [8.3], http://www.bayef
sky.com/pdf/newzealand-t5_iccpr_902 1999.pdf [hereinafter Joslin].
58. Id.
59. Id.
60. ICCPR, supra note 26.
61. Id.
62. Joslin, supra note 57.
63. Id.
64. Id.

[W]hen the Committee has held that certain differences in the treatment of
married couples and unmarried heterosexual couples were based on reasonable
and objective criteria and hence not discriminatory, the rationale of this approach
was in the ability of the couples in question to choose whether to marry or not to
marry, with all the entailing consequences. (b) No such possibility of choice
exists for same-sex couples in countries where the law does not allow for same-
sex marriage or other type of recognized same-sex partnership with
consequences similar to or identical with those of marriage. Therefore, a denial
of certain rights or benefits to same-sex couples that are available to married
couples may amount to discrimination prohibited under article 26, unless
otherwise justified on reasonable and objective criteria.

Id.

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228 FLORIDA JOURNAL OF INTERNA ITONAL LAW [Vol. 28

the language in Article 26.65

Significantly, the HRC has reversed previous decisions before, thus
treating the ICCPR as a "living document," or at least a document that is
capable of reinterpretation. 6 6 In 1990, the European Court of HCR
concluded in L. TK v. Finlandthat the ICCPR did not support the right
to conscientious objection. 6 7 In 2011, the HRC reversed that decision
when it recognized the right to conscientious objection in Bayatyan v.
Armenia. The HCR noted that after the ruling in L. T.K many European
countries started to recognize the right to object.6 8 The legalization of
conscientious objection across Europe doubtless encouraged the HCR's
change of opinion. 6 9 Other cases where the HCR reversed itself include
in Judge v. Canadawhere the HCR held that countries had an obligation
to protect a criminal defendant's right to life, and reject the death
penalty. 70 The HCR again pointed to a growing consensus among
member countries in favor of the abolition of the death penalty. 7 ' Because
the language of Article 23 does not necessarily preclude same-sex
marriage, and because the ICCPR is considered a living document, the
right to same-sex marriage may be revisited by the HRC in the future.

V. SAME-SEX MARRIAGE As RECOGNIZED BY EMERGING

CUSTOMARY LAW

The right to marry whoever one wishes is an elementary human

right .... Even political rights, like the right to vote, and nearly all
other rights enumerated in the Constitution, are secondary to the
inalienable human rights to 'life, liberty and the pursuit of
happiness' proclaimed in the Declaration of Independence; and to
this category the right to home and marriage unquestionably
belongs.

-Hannah Arendt, "Reflections on Little Rock" 72

65. Id.
66. Views: Communication, HUMAN RIGHTS COMMITTEE, U.N. Doc CCPR/C/78/D/829/
1998 (Aug. 5, 2002).
67. L.T.K. v. Finland, D/185/1984, 1HRL 2795 (UNHRC 1985) (July 9, 1985), http:/
wwwl.umn.edu/humanrts/undocs/html/185-1984.htm.
68. Case of Bayatyan v. Armenia, 23459/03, July 7, 2011, European Court of Human
Rights, http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-10561 1#{"itemid":["001-
105611"]}, at 103.
69. Id.
70. Roger Judge v. Canada, Comm. No. 829/1998, U.N. Doc. CCPR/C/78/D/829/1998
(2003), http://wwwl.umn.edu/humanrts/undocs/829-1998.html.
7 1. Id.
72. Hannah Arendt, Reflections on Little Rock, DISSENT 49 (Winter 1959),

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There have been 22 countries that have accorded legal recognition to

same-sex marriage, suggesting that marriage equality is an emerging
norm.7 3 Customary international law (CIL) is law embodied in
established norm rather than treaty obligations. 74 A customary law is
created when states act in a "uniform, extensive and representative"
manner. 75 CIL is memorialized in Article 38(1)(d) of the International
Court of Justice Statute, which states: "[This Court] shall apply . .

.
international custom, as evidence of a general practice accepted by law"
and " the general principles of law recognized by civilized nations."7 6 For
a state practice to qualify as a constituent of CIL, the practice must be
"extensive and representative," though it does not need to be universal. 77
States must engage in the practice out of a sense of legal obligation, also
called the Opinio Juris.
Emerging case law from around the globe suggests same-sex marriage
is an emerging Customary International Law. The United Nations has an
expert body that determines the exact nature of a CIL.79 The Restatement
ofthe Law, Third, ForeignRelations Law of the United States, published
by the American Law Institute in 1987, states that evidence of CIL can
be found in judgments and opinions of international judicial and arbitral
tribunals; judgments and opinions of national judicial tribunals; the
writings of scholars; and, pronouncements by states that undertake to
state a rule of international law.80 At the time of the HCR's decision in
Joslin v. New Zealand, the Netherlands was the only country to accord
legal recognition to same-sex marriage. 8 1Much has changed since 2002,
and the recognition of same-sex marriage by governments is occurring at
break-neck speed. Only 4 years ago, 10 countries and 6 American states
recognized same-sex marriage. 82 While there is much work to be done

http://learningspaces.org/forgotten/little-rockl.pdf
73. PEW, infra note 87.
74. Statute of the International Court of Justice, art. 38, http://www.icj-cij.org/
documents/?pl=4&p2=2.
75. Formation of Customary (General) InternationalLaw (1984-2000) INT'L L. Assoc.,
http://www.ila-hq.org/en/committees/index.cfm/cid/30 [hereinafter INT'L L. Assoc.].
76. Statute of the International Court of Justice, INTERNATIONAL COURT OF JUSTICE,
http://www.icj-cij.org/documents/?pl=4&p2=2.
77. Id. at 23.
78. Jack L. Goldsmith & Eric A. Posner, A Theory of Customary International Law, 4-5
(Chicago John M. Olin Law & Economics Working Paper No. 63 (2d Series)),
http://www.iaw.uchicago.edu/ files/files/63.Goldsmith-Posner.pdf.
79. Vaughn Lowe, INTERNATIONAL LAW 25 (2015); A. Mark Weisburd, International
Court ofJustice and the Concept ofState Practice,31 U. PA. J. INT'L L. 295 (2009).
80. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES (1988)
[hereinafterRESTATEMENT].
81. PEW, infra note 87.
82. Ross Toro, States Where Gay Marriage Is Legal (Infographic) LIVE SCI. (Apr. 26,

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230 FLORIDA JOURNAL OFINTERNATIONALAW V 28

[Vol.

with regard to the negative rights of LGBT persons living certain parts of
the Africa, Asia, and Russia, the focus in much of the world is shifting to
the positive right to same-sex marriage. 8 3 The courts and legislatures of
countries that have accorded legal recognition to same-sex marriage have
frequently justified their decisions by using or referring to international
law.8 4 Interestingly, many states that have legally recognized same-sex
marriage are not in Europe or North America. South Africa recognizes
same-sex marriage as a fundamental right, as do five countries in Latin
America.8 5
The following are examples of high court decisions and legislative
support for same-sex marriage around the world in a way that is "uniform,
extensive and representative" in character. 86 While the recognition of
same-sex marriage in twenty-two countries is not enough to make same-
sex marriage a CIL, it does suggest "marriage equality is rapidly gaining
momentum in much of the world." 87 One way the United States can
encourage the expansion of the positive right to gay marriage is to
continue to point to emerging international standards surrounding gay
marriage, and predicate aid on steps taken toward positive LGBT rights.

A. South Africa

The highest court in South Africa held that exclusionary marriage

laws and regulations violate the South African constitutional guarantee
88
of "equal rights" as well as "inherent worth and dignity." Similar to the
United States, South Africa is a constitutional democracy with an
independent judiciary subject to a Constitution, substantially rewritten
and adopted in 1996, as well as statutes and common law. 89 In 2005, the
Constitutional Court of South Africa heard a challenge to provincial and
local bans on same-sex marriage. The Court held that same-sex marriage

2013), http://www.1ivescience.com/29099-states-where-gay-marriage-is-legal-infographic.html.
83. Where is it Illegal to be Gay?, BBC (Feb. 10, 2014), http://www.bbc.com/news/world-
25927595 [hereinafter Illegalj.
84. Sonia Bychokov Green, Currency of Love: Customary InternationalLaw and the
Battle for Same-Sei Marriagein the United States, 14 U. PA. J.L. & Soc. CHANGE 53 (2010).
85. PEW, infra note 87.
86. INT'L L. Assoc., supra note 75.
87. Gay Marriage Around the World, PEW RESEARCH CENTER (Mar. 9, 2015)
http://www.pewforum.org/2013/12/19/gay-marriage-around-the-world-2013/ [hereinafter PEW];
Michael J. Klarman, How Same-Sex Marriage Came to Be, HARV. MAG. (Mar.-Apr. 2013),
http://harvard magazine.com/2013/03/how-same-sex-marriage-came-to-be.
88. Minister of Home Affairs v. Fouri, 3 BCLR 355, [P 162] (S. Afr. Const. Ct. Dec. 1,
2005), http://www.saflii.org/za/cases/ ZACC/2005/19.pdf [hereinafter Fourie]; Bill Keller, Out in
Africa, N.Y. TIMEs (Dec. 23, 2013), http://www.nytimes.com/2012/12/24/opinion/keller-out-in-
africa.html.
89. See South Africa's Judiciary, SOUTH AFRICA INFO, http://www.southafrica.info/about/
democracy/judiciary.htm#.VTa9PmTBzGc (last visited May 3, 2015).

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 Brown: Human Rights, Gay Rights, or Both? International Human Rights Law

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rights are fundamental, and not subject to jurisdictional limitations. 90

Though the South African Constitution and applicable laws do not
expressly include the positive right to same-sex marriage, the
Constitutional Court held that guarantees to equality and non-
discrimination necessarily guarantee the fundamental right to same-sex
marriage. Section 9 of South Africa's Bill of Rights states "Everyone is
equal before the law and has the right to equal protection . . . ."91
Subsection 3 of the Bill of Rights goes on to specify that equality includes
grounds such as gender and sexual orientation. 9 2 The Court reasoned that
the exclusion of same-sex couples from the "entitlements and
responsibilities" given to different-sex couples was a denial of equal
protection rights. The denial of same-sex marriage benefits, the Court
went on to say, was not an oversight but the result of historic
homophobia. 9 3 Therefore, the equal rights section of the Constitution
could not merely be read as a provision that protected LGBT persons
from discrimination. The provision must also, rather, be understood to
include the right to legal recognition of same-sex marriage, because equal
rights implicitly include the right to be acknowledged as equals and
embraced with dignity under the law. 9 4
Significantly, the Court rejected the argument that the UDHR
excluded same-sex marriage. It stated:

There is nothing in the international law instruments to suggest that

the family which is the fundamental unit of society must be
constituted according to any particular model. Indeed, even if the
purpose of the instruments was expressly to accord protection to a
certain type of family formation, this would not have implied that
all other modes of establishing families should for all time lack
legal protection.

Finally, the Court found that not recognizing same-sex marriage

subverts public policy. "[M]arriage touches on many ... aspects of law,"
the Court observed, "including labor law, insurance and tax. These issues
are of importance not only to the applicants and the gay and lesbian
community but also to society at large." 95

90. Albie Sachs, South Africa's Path to MarriageEquality, L.A. TIMES (JUNE 13, 2013),
http://articles.1atimes.com/2013/jun/13/opinion/la-oe-sachs-gay-marriage-south-africa-201306
13/2.
91. Jonathan Capehart, Nelson Mandela: LGBT Rights Champion, WASH. POST (Dec. 6,
2013), http://www.washingtonpost.com/blogs/post-partisan/wp/2013/12/06/nelson-mandela-igb
t-rights-champion/.
92. Id.
93. Fourie, supra note 88.
94. Id. at 49.
95. Id.

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232 FLORIDAJOURNAL OF INTERNATIONAL LAW [Vol. 28

It is significant that a country committed to human rights in the wake

of apartheid [the TRC is an aspect of the move away from apartheid, after
all] would find that same-sex marriage was a fundamental human right.
With a constitution that prohibits discrimination on the basis of sexual
orientation, it is logical to extend that commitment to equality to include
the legal recognition of same-sex marriage.

B. South America

Of the 22 countries worldwide that recognize same-sex marriage four

of them are heavily Roman Catholic countries in Latin America with
96
modem Constitutions that incorporate Human Rights language. The
high courts of Brazil, Colombia, and Mexico have interpreted their
97
countries' constitutions as enshrining same-sex marriage rights.
Argentina's court was primed to be the first court in Latin America to
rule in favor of same-sex marriage, but the court stepped back, allowing
the country's president and legislative body to take the lead by approving
legislation according recognition to same-sex marriage. 9 8 Argentina was
the first country in South America in which a legally recognized same-
sex wedding took place, in 2009.99
There are three important considerations to note about marriage in
Latin America. First, marriage in Latin America is generally a civil
0 0 Second, Latin
institution that takes place outside a religious context.'
American Countries have constitutional frameworks where constitutions
are routinely updated, thereby providing Latin American countries the
opportunity to incorporate contemporary human rights ideas and
language. 0 ' Third, Latin American countries have judiciaries that accept
"trans-national legalism," and these judiciaries consider rulings from
other countries and from international tribunals in cases that involve
human rights.' 0 2 In fact, the Mexican Supreme Court cited Loving v.
03
Virginia when it ruled, unanimously, in support of same-sex marriage.1
It was Brazil's highest appeals court, the National Council of Justice
(CNJ), that as in South Africa, approved the legal recognition of same-

96. PEw, supra note 87.

97. Omar G. Encarnaci6n, Why Latin American CourtsFavor Gay Rights, N.Y. TIMES (Jan.
29,2014), http://www.nytimes.com/roomfordebate/2014/01/29/why-is-latin-america-so-progress
ive-on-gay-rights/why-latin-american-courts-favor-gay-rights.
98. Id.
99. Michael Warren, Argentina Gay Marriage Law: First Country in Latin America to
Approve Same-Sex Marriage, HUFFINGTON POST (July 15, 2010), http://www.huffingtonpost.
com/2011/10/18/argentina-gay-marriage_n_101 8536.html.
100. Encarnaci6n, supra note 97.
101. Id.
102. Id.
103. Id.

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sex marriage.1 04 The court held that government officials were prohibited
from refusing to authorize or execute civil marriages based on the sexes
of the partners. The CNJ also ruled that Brazil must recognized same-sex
marriages performed outside of Brazil.' 0
In 2013, Urugay's Congress voted to grant legal recognition to same-
sex marriage. Both leftists and conservatives voted in favor of the change.
Fernando Amado of the center-right Colorado party said: "I agree that
family is the basis of society but I also believe that love is the basis of
family. And love is neither homosexual nor heterosexual." 10 6 Professor
Elisabeth Friedman of the University of San Francisco writes that
"[m]ovements for sexual and gender rights are not new to Latin America,
but they have developed sophisticated strategies capitalizing on the
historical legitimacy of human rights. In a region that experienced
decades of authoritarian repression, demands for human rights have
powerful resonance."

C. Europe

1. The European Court of Human Rights

In sharp contrast to South Africa, the European Court of Human

Rights ruled that gay marriage was not a fundamental human right. In
2010, an Austrian couple challenged their country's ban on gay marriage
at the European Court of Human Rights in the Case of Schalk and Kopf
v. Austria.10 7 In its analysis, the European Court first examined Article
12 of the European Convention on Human Rights (ECHR) and Article 9
of the Charter of Fundamental Rights of the European Union (CFR), both
of which protect the right to marry. 10 8 The Court then examined Article
14 and Article 8 together. Article 8 guarantees the right to a private life
and family, while Article 14 prohibits discrimination.

104. Julie Deisher, Brazil Justice Council Effectively Legalizes Same-Sex Marriage,JURIST
(May 16, 2013), http://jurist.org/paperchase/2013/05/brazil-justice-council-effectively-legalizes-
same-sex-marriage.php.
105. Id.
106. Malena Castaldi & Felipe Llambias, Uruguay Approves Gay Marriage, Second in
Region to Do So, REUTERS (Apr. 10, 2013), http://www.reuters.com/article/2013/04/l1/us-
uruguay-gay-idUSBRE93AO0L20130411.
107. Case of Schalk & Kopf v. Austria (June 14, 2010), http://hudoc.echr.coe.int/sites/eng/
pages/search.aspx# {"dmdocnumber":["870457"],"itemid":["001-99605"]} [hereinafter Schalk].
108. Article 12 of the ECHR states: "Men and women of marriageable age have the right to
marry and to found a family, according to the national laws governing the exercise of this right."
Council of Europe, The European Convention on Human Rights, art. 12, HELLENIC RESOURCES
NETWORK, http://www.hri.org/docs/ECHR50.html#C.Art12. Article 9 states, "The right to marry
and the right to found a family shall be guaranteed in accordance with the national laws governing
the exercise of these rights." Why the EU Charter of Rights Exists, E.U. FUNDAMENTAL RIGHTS,
http://ec. europa.eu/justice/fundamental-rights/charter/indexen.htm.

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234 FLORIDA.JOURNAL OF INTERNATIONAL LAW [Vol. 28

In Schalk, the European Court found that a right to same-sex marriage

was not enumerated in the ECHR or the CFR. Article 12 of the ECHR
guarantees the right to marry and found a family, and thus echoes the
language of Article 16 of the DHR.' 09 Unlike the DHR, however, the
ECHR limits the right to marriage by subjecting it to the governing law
of each European country." 0 Prior to Schalk, the European Court had
ruled against the right to marry for transsexual persons because "Article
12 enshrined the traditional concept of marriage as being between a man
and a woman." 1 The Court in Schalk went on to state: "Contracting
States had extended marriage to same-sex partners ... this reflected their
own vision of the role of marriage in their societies and did not flow from
an interpretation of the fundamental right as laid down by the
Convention."l12
The Court also noted that the wording in Article 12 was the result of
the "historical context" in which the Convention was written in 1950."
"[M]arriage was clearly understood in the traditional sense as being a
union between partners of different sex." 11 4 The Court then looked to the
CFR. Article 9 of the CFR guarantees the right to marry without
referencing gender, but with a reference to national law. The European
Court concluded marriage is not "limited to . . . two persons of the
opposite sex," but "same-sex marriage is left to regulation by the national
5
law of the Contracting State.""1
Next, the Court examined Articles 8 and 14 of the ECHR together.
Here, the court recognized that relational stability and the cohabitation of
same-sex couples are aspects of "family life."ll 6 However, the Court
noted that "same-sex couples are just as capable as different-sex couples
of entering into stable committed relationships" in Austria."' The Court
reasoned that no "need for legal recognition and protection of their
relationship" existed because same-sex couples were free to form
domestic partnerships." 8 The existence of same-sex families without the
presence of discrimination is, therefore, not enough to overcome the

109. Universal Declaration of Human Rights, G.A. Res. 217, U.N. GAOR, 3d Sess., U.N.
Doc. A/810, art. 16 (1948), http://www.un.org/en/documents/udhr/ (last visited May 3, 2015).
110. Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4,
1950, 213 U.N.T.S. 222, http://www.echr.coe.int/Documents/ConventionENG.pdf (last visited
May 3, 2015).
111. Schalk, supra note 107.
112. Id.
113. Id.
114. Id.
115. Id.
116. Id.
117. Id.
118. Id.

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limitations placed on marriage by Article 12 of the ECHR.119

The Court declined to rule on whether the presence of discriminatory
limits on entry into legally recognized civil unions would constitute a
violation of a human rights because Austria allows for such domestic
partnerships on a non-discriminatory basis. 12 0 Additionally, the Court
declined to address the disparity in rights guaranteed to marriage partners
and those guaranteed to participants in civil unions in Austria.121 Civil
unions in Austria are void of many of the rights and privileges provided
to married couples, including the right to adopt and access to fertility
treatments. 12 2 There are 70 differences in the legally protected rights and
privileges accorded to participants in civil unions and those accorded to
marriage partners in Austria. 123

2. Individual European Union Members

Regardless of the ruling by the ECHR, many countries in Europe have

continued on the path to marriage equality. Since the ruling by the ECHR,
8 European states have recognized same-sex marriage, bringing the total
of states recognizing same-sex marriage to 12.124
The Netherlands was the first country in Europe to accord legal
recognition to same-sex marriage, in 2000. The Netherlands passed
national legislation codifying the right by a 3-to-1 majority. However,
same-sex marriage in the Netherlands did not necessarily include all of
the rights that opposite-sex couples had in marriage, specifically
automatic parental rights for any child born within a same-sex
marriage. 125 Belgium followed the Netherlands 3 years later, in 2003,
with legislation that allowed for same-sex marriage, giving LGBT
spouses inheritance rights and tax privileges.1 2 6 Then, 3 years after that,
Belgium added to the rights of married same-sex couples with the right
to adopt children. 12 7 In 2005, Spain passed legislation recognizing same-

119. Id.
120. Id.
121. Id.
122. Phil Cain, Austrian Seek Right to PartnershipCreatedfor Gays, BBC (May 17, 2010),
http://news.bbc.co.uk/2/hi/europe/8687064.stm.
123. Id. (Interestingly, one right afforded under civil unions is the right to work for non-
Austrian partners.).
124. PEW, supra note 87 (At this time, countries in Europe that allow same-sex marriage
include Denmark since 2012, England and Wales since 2013, Finland since 2015, France since
2013, Iceland since 2010, Luxembourg since 2014, the Netherlands since 2000, Norway 2009,
Portugal since 2010, Scotland since 2014, Spain since 2005, and Sweden since 2009.).
125. Lisa Belkin, Dutch Views on Same-Sex Marriage, N.Y. TIMEs, (Nov. 9, 2009, 3:16
PM), http://parenting.blogs.nytimes.com/2009/11/09/how-the-dutch-work-same-sex-marriage/
? r-0.
126. Id.
127. Id.

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236 FLORIDA JOURNAL OFINTERNATIONALLAW [Vol. 28

sex marriage and granting same-sex spouses rights identical to those

available to different-sex spouses.
When Scotland granted legal recognition to same-sex marriage, the
Cabinet Secretary for Health and Wellbeing said the new law was an
"important signal that our nation is absolutely committed to the same
rights for all our citizens"l 28 Expressing similar commitments, Denmark,
Sweden, Iceland, and Norway have eliminated separate systems for
same-sex partnerships because such systems were inadequate and
unequal with regard to economic and parental privileges. In Denmark, the
parliament voted by a large majority to make it mandatory for all
churches established by the state of Denmark to conduct gay
marriages. 12 9 An individual priest can refuse to officiate at a same-sex
wedding, but the bishop in the priest's diocese must make arrangements
for a replacement priest.
Iceland is the only country with an openly gay head of government,
Prime Minister Johanna Sigurdardottir. "The attitude in Iceland is fairly
pragmatic," observes University of Iceland political scientist Gunnar
30
Helgi Kristinsson. Gay marriage "has not been controversial." Prime
Minister Sigurdardottir married her partner on the day same-sex marriage
became available.'31
In France, President Frangois Hollande made equal marriage
legislation the biggest priority among his socialist reform efforts, while
conservative leader Nicolas Sarkozy proclaimed marriage equality was
"humiliating" to straight families.1 3 2 The French Constitutional Counsel
ultimately ruled that gay marriage "did not run contrary to any
constitutional principles" and did not infringe on "basic rights or liberties
or national sovereignty."1 3 3 Same-sex marriage has been legally
recognized in France since 2013.134
In the United Kingdom, unlike France, legal recognition for same-sex
marriage had significant support among conservatives, who opined that

128. Richard Orange, Date Set for First Same-Sex Marriages in Scotland, BBC (Oct. 13,
2010), http://www.bbc.com/news/uk-scotland-scotland-politics-29595701.
129. Gay Danish Couples Win Right to Marry in Church, TELEGRAPH, (June 7, 2012, 5:06
PM), http://www.telegraph.co.uk/news/worldnews/europe/denmark/9317447/Gay-Danish-coupi
es-win-right-to-marry-in-church.html.
130. Birna Bjornsdottir et al., Iceland Passes Gay Marriage Law in Unanimous Vote,
REUTERS (June 11, 2010), http://www.reuters.com/article/2010/06/11/us-iceland-gaymarriage-
idUSTRE65A3VO2010061 1.
131. Gay Marriage Around the World, BBC (July 5, 2013), http://www.bbc.com/news/
world-21321731.
132. Marc Naimark, Would a Second Sarkozy Presidency End Marriage Equality in
France?, SLATE (July 5, 2013), http://www.slate.com/blogs/outward/2014/09/23/sarkozy and
gay marriage would he endmarriageequalityin france.html.
133. Id.
134. PEW, supra note at 87.

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 Brown: Human Rights, Gay Rights, or Both? International Human Rights Law

2016] HUMAN RIGHTS, GAY RIGHT SOR BOTH? 237

same-sex marriage was evolutionary rather than revolutionary, and saw

same-sex marriage as bolstering rather than undermining marriage. Maria
Miller, the Conservative cabinet member who introduced the marriage-
equality bill for England and Wales, maintained: "Marriage is not static;
it has evolved and parliament has chosen to act over the centuries to make
it fairer and more equal. We now face another such moment-another
such chance in this new century." 3 5 According to Conservative Prime
Minister David Cameron, the law "says we are a country that will
continue to honor its proud traditions of respect, tolerance and equal
worth."l 36

D. South Asia

1. India

Marriage in India can be a civil or religious arrangement, though the

vast majority of marriages in India are religious. In India, 90% of the
marriages are arranged by parents of the members of marrying couples in
accordance with families' religious traditions. 3 3 Gay rights activists have
yet to gain significant attention for same-sex marriage rights. In 2009, a
Delhi High Court rejected sodomy laws that came into effect during the
British Colonial Period. 13 8 For 4 years, same sex couples began to freely
associate and live together. 1 3 9 However, in 2013 the Indian Supreme
Court reversed the ruling, leaving India 1 of 3 countries to criminalize
same-sex sexual relations in the last 40 years.1 4 0
Though the law criminalizing same-sex sexual relations is rarely
invoked, the law reflects a culture that does not accept gay relationships
as legitimate. 141 Gay sex acts in themselves are not necessarily frowned
upon. Sex between men, especially young men, is not regarded as
equivalent to heterosexual sex but is instead seen as a kind of "erotic
playfulness," a way to satisfy an "urgent bodily need."1 4 2 But the

135. Patrick Wintour, Gay MarriagePlans Offer 'Quadruple Lock'for OpposedReligious

Groups, GUARDIAN (Dec. 11, 2012), http://www.theguardian.com/society/2012/dec/11/gay-
marriage-quadruple-lock-religious-groups.
136. Same-Sex Marriage Now Legal as First Couples Wed, BBC (Mar. 29, 2014),
http://www.bbc.com/news/uk-26793127.
137. Myrna Toledo, First Comes Marriage, Then Comes Love, ABC NEWS (Jan. 30, 2009),
http://abcnews.go.com/2020/story?id=6762309.
138. J. Venkatesan, Supreme Court Sets Aside Delhi HC Verdict DecriminalisingGay Sex,
HINDU NAT'L (Dec. 12, 2013), http://www.thehindu.com/news/national/supreme-court-sets-
aside-delhi-hc-verdict-decriminalising-gay-sex/article5446939.ece?homepage= true.
139. Id.
140. Illegal, supra note 83.
141. India Top Court Reinstates Gay Sex Ban, BBC (Dec. 11, 2013), http://www.bbc.com/
news/world-asia-india-25329065.
142. Sudhir Kakar, Homosexualityand the Indian, INDIAN (Aug. 17, 2007), http://www.little

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238 FLORIDA JOURNAL OF INTERNATIONAL LAW V 28

[Vol.

paradigm case of morally ideal sex is sex in which partners in a different-

sex marriage engage in order to procreate.1 4 3
Despite cultural barriers, activists continue to fight for marriage
equality in India. Delhi's nascent but vocal Common People Party gained
28 of the 70 seats in the Delhi Legislative Assembly in 2013.144 The party
supports the legal recognition of same-sex marriage, and maintains that
the criminalization of same-sex sexual relations is an encroachment on
the sexual rights of minorities.1 4 5

2. Nepal

The government of Nepal became the first in South Asia, as the result
of a 2007 Supreme Court ruling, seriously to investigate the possibility
of same-sex marriage.1 4 6 The Supreme Court ordered the government to
guarantee sexual rights and end discrimination; however, laws effecting
marriage equality have been stalled in the legislature.1 4 7 Marriage in
Nepal is a religious and cultural institution rather than a civil one. 14 8 As
in India, same-sex partnerships are not considered legitimate. However,
also as in India, sexual identities are fluid as are sexual practices. Men
who have sex with men are frequently also married to women, and a
procreative marriage is considered a successful one, whatever the sexual
desires of the partners. 1 4 9

E. Emerging Customary InternationalLaw

While the legal recognition of gay marriage in 22 countries may not

qualify marriage equality as sufficiently "uniform, extensive and
representative"' to ground the claim that legal recognition for same-sex
marriage is a requirements of CIL, there is an emerging right to same-sex
marriage in most regions of the globe. While the international community
needs to place continued pressure on Russia, as well as some African and

india.com/life/ 835-homosexuality-and-the-indian.html.
143. Id.
144. Joe Morgan, India 'Partyofthe People'Promisesto Legalize Gay Sex, Marriage,GAY
STAR NEWS (Apr. 11, 2014), http://www.gay starnews.com/article/india-party-people-promises-
legalize-gay-sex-marriage 110414.
145. Id.
146. Being Gay in Asia: Nepal Country Report, at 3, USAID, http://www.usaid.gov/sites/
default/files/documents/1861/Being LGBT in AsiaNepal Country_Report.pdf (last visited
May 3, 2013) [hereinafter Nepal USAID].
147. Nepal's 'FirstGay Wedding'Held, BBC (June 20, 2011), http://www.bbc.com/news/
world-south-asia-I 3847299.
148. Nepal USAID, supra note 146.
149. Id.
150. INT'L L. Assoc., supra note 75.

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 Brown: Human Rights, Gay Rights, or Both? International Human Rights Law

2016]1 HUMAN RIGH75. GAY RIGHTSOR BOTH? 239

Asian countries, to protect LGBT persons from violence and

discrimination, the global discussion about LGBT rights is increasingly
focused on same-sex marriage. Judicial, legislative, and political
comments made in the aggregate point to a growing global acceptance of
same-sex marriage. In fact, the rate of change is breathtaking. The
influence of the judicial, legislative and political changes that have taken
place in South Africa, Latin America and Europe can be felt around the
globe. In countries like India where gay sex is illegal, minor political
parties have begun to talk about according legal recognition to gay
marriage while also securing negative LGBT rights. Neighboring Nepal
is considering legislation to recognize gay marriage at the prompting of
its Supreme Court. The United States can bolster this momentum by
including the right to marry in the rubric it uses to report on the status of
LGBT persons around the world, a rubric that will then be used to confer
aid through the World Bank.

VI. CONCLUSION: PROMOTING POSITIVE LGBT RIGHTS

"[Protecting the] rights of LGBT people [is] an inseparable part of

America's promotion of human rights around the world."
-Vice President of the United States Joe Biden 5 1

The United States should promote positive as well as negative LGBT

rights. Marriage is associated with rights and privileges that are not
typically granted outside of marriage. These rights can include automatic
rights under intestacy, tax privileges, and rights to children, among many
others. Additionally, same-sex marriage has a basis in international
human rights law, specifically ICCPR Articles 23 and 26. Emerging
jurisprudence around the globe also points to a sea change in national
laws regarding same-sex marriage. This change is evident not only in
North America and Europe but also in Latin American countries and
South Africa as well. If, as former Secretary of State Hillary Clinton
asserted, "Gay rights are human rights. Human rights are gay rights," then
the fundamental human right to marry must also be extended to LGBT
persons. The United States and the Obama Administration should work
toward international acceptance of the new political, judicial and
legislative same-sex marriage norm.

151. Jeff Prescott, Standing Up for LGBT Rights Around the World, THE WHITE HouSE
(Mar. 25, 2014, 10:08 AM), https://www.whitehouse.govlblog/2014/03/25/standing-Igbt-rights-
around-world.

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