Friday, December 02, 2005

International Law in the South Africa Gay Marriage Case

In Minister of Home Affairs v. Fourie the Constitutional Court of South Africa yesterday recognized the marriage of two women and gave the Parliament one year to extend legal marital rights to all same-sex couples. A copy of the opinion is here.

Just a quick thought on one aspect of the Court decision, namely its methodology in relying on international law. If you are at all interested in the issue of constitutional comparativism, you really should read the entire international law section of the opinion (paras. 99-105) and the one passing reference I could find to comparative experiences. (para. 127, n. 119). International law was one of the four main arguments articulated for refusing to extend the right of marriage to gays and lesbians. (para. 84).

It should be emphasized that constitutional comparativism is not in the least suspect in the South African context. The key difference between the South African Constitution and the U.S. Constitution is that the former has a specific provision (Section 39) stipulating that "[w]hen interpreting the Bill of Rights, a court ... must consider international law." (See para. 99 discussing Sections 39 and 232). Thus, reference to international law in constitutional decision-making in South Africa is not only recommended, it is textually required.

At first blush what is most intriguing to this American about Fourie is its apparent facial incompatability not only with its own celebrated comparative approach in the death penalty case of Makwanyane, but also with the comparative approach urged by the U.S. Supreme Court in the recent decision in Roper v. Simmons.

In Makwanyane, the South African Constitutional Court relied extensively on international and comparative experiences to inform whether the death penalty was consititutionally suspect in that country. (paras. 33-109) The Court there argued that "The international and foreign authorities are of value because they analyse arguments for and against the death sentence and show how courts of other jurisdictions have dealt with this vexed issue. For that reason alone they require our attention." (para. 34).

In Roper the U.S. Supreme Court concluded that there was near universal international support for abolition of juvenile capital punishment, both in state practice and international agreements. The U.S. Supreme Court seized upon this fact to conclude that the Eighth Amendment must be read consistent with this international standard of decency.

In Fourie, by contrast, only four countries in the world recognize gay marriage (Netherlands, Belgium, Spain, and Canada), and the government expressly relied upon international law to maintain that the current international law standard does not recognize homosexual marriage. That standard, the state argued, should inform whether to extend the right in South Africa.

The approach taken by the South African Constitutional Court in Fourie does not inspire confidence for the future of constitutional comparativism. Unlike in Makwanyane, the Court all but ignored comparative law and severely discounted the importance of international law. It recognized that while there is no international law support for gay marriage, neither does international law expressly prohibit it. "[W]hile it is true that international law expressly protects heterosexual marriage, it is not true that it does so in a way that necessarily excludes equal recognition being given now or in the future to the right of same-sex couples..." (para. 105). This suggests that international law is not being used as confirmation of a standard, as in Roper and Makwanyane, but simply as a floor that can be ignored as necessary.

Instead of relying on international law to articulate an international standard of decency and equality, the Court opted for a breathtakingly open-ended version of living constitutionalism, quite literally a constitution with limitless horizons: "[E]ven if the purpose of the [international] instruments was expreslly 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. Indeed, rights by their nature will atrophy if they are frozen. As the conditions of humanity alter and as ideas of justice and equity evolve, so do concepts of rights take on new texture and meaning. The horizon of rights is as limitless as the hopes and expectations of humanity." (paras. 101-02).

The Court also undescored that international law can only be used to expand rights, not contract them. "It would be a strange reading of the Constitution that utilised the principles of international human rights law to take away a guaranteed right." (para. 104). So we should use international law to interpret the Constitution, but only if we use it as an intepretive device to grant a right, not curtail one?

In light of these excerpts, query whether you can square the comparative approach in Fourie and the comparative approach in either Makwanyane or Roper. As the former decision is still fresh off the press, I have not had the chance to think it through fully. But they do not seem particularly consistent with each other, to say the least.

As I have written elsewhere, it appears that constitutional comparativism is a one-way ratchet. Fourie certainly leaves one with that impression. If international and comparative law does not support the expansion of rights, it will be discounted. If international and comparative does support the expansion of rights it will be used as confirmation of what the Constitution requires. This gives one pause, causing many to wonder if the goal of this project really is a thorough-going methodology of international norm internalization, or a selective and results-oriented borrowing of international source material to reach a desired result. This only underscores the fears of skeptics that the constitutional comparativism game is rigged.

If you want to know the comparativists' game plan for discounting the importance of international and comparative law when it affords less capacious protections than they would like, just take a look at Fourie.


Blogger Elizabeth K. Cassidy said...

Professor Alford: I always enjoy your posts on this issue, which is also one that is of interest to me. Having spent some time studying and teaching in Southern Africa, I would suggest that the text of the South African Constitution itself explains the different weight given to foreign and international law in Makwanyane and Fourie. The death penalty is not expressly addressed in the South African bill of rights. (Section 11 reads, in its entirety, “[e]veryone has the right to life.” In fact, the drafters purposefully left the difficult issue of the death penalty up to the courts because they couldn’t decide how to address it.) By contrast, sexual orientation is one of the listed grounds on which unfair discrimination is prohibited (Section 9(3)). In this regard, the South African Constitution is alone among the world’s constitutions, and goes farther than international law. In interpreting the bill of rights, the South African courts are supposed to consider international and foreign law. The Fourie court did so. It didn’t follow these sources, but it didn’t have to. And in light of the different textual treatment of sexual orientation discrimination in the South African Constitution, as compared to other constitutions and international human rights instruments, wouldn’t it have been illegitimate if it had? -- Elizabeth Cassidy, Geneva, Switzerland (onetime contributor of Geneva Dispatches to Opinio Juris)

12/02/2005 6:05 AM  
Blogger brian ray said...

I agree with Elizabeth that the key consideration in Fourie is the constitution's own text. Section 39 requires the Court to refer to International Law when interpreting the Human Rights provisions, but this does not permit the Court to ignore the plain meaning of the Constitution on the basis that international law conflicts with that meaning.

I think that is what the Court is saying in the passage Professor Alford highlights: "It would be a strange reading of the Constitution that utlised the principles of international human rights law to take away a guaranteed right." para. 104. If the Constitution expressly protects something, then international law cannot be used to argue for ignoring that protection.

In Fourie, the Court found that there was no conflict in any event because, while international law does not affirmatively prohibit sexual-orientation discrimination, it likewise does not forbid recognition of same-sex marriages. para. 103. Therefore, there was no cause to even consider a weaker interpretation of the Constitution's prohibition against sexual-orientation discrimination on international law grounds.

Thus, the use of international law was appropriately limited in Fourie for two related reasons: First, the Constitution's own text (not to mention a string of earlier precedents) clearly favored requiring recognition of same-sex marriages. Second, international law did not directly conflict with that outcome; at most, it failed to provide affirmative support.

This approach is consistent with that of Makwanyane, where the Court recognized that international law did not prohibit capital punishment but found that this was because the right to life was qualified under international law, whereas those same qualifications do not exist in the text of the SA Constitution. paras. 36-39. The Court summed up its comparative approach in a way that, I think, accurately characterizes Fourie: "In dealing with comparative law, we must bear in mind that we are required to construe the South African Constitution, and not an international instrument or the constitution of some foreign country, and that this has to be done with due regard to our legal system, our history and circumstances, and the structure and language of our own Constitution. We can derive assistance from public international law and foreign case law, but we are in no way bound to follow it."

12/02/2005 1:16 PM  
Blogger brian ray said...

Apologies for the double-post but a good counter-example to the one-way ratchet characterization just occurred to me.

In S v. Jordan, CCT 31/01 (2002) the concurrence of O'Regan and Sachs relied in part on U.S. jurisprudence to find that prostitution implicated the right to privacy only minimally and therefore that an anti-brothel law did not unconstitutionally infringe on that right. This is at least one example (I'm certain there are others) where the SA Court at least uses comparative sources to restrict rather than expand a constitutional right.

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