"I conclude that the failure of the common law and the...Act to provide the means whereby same-sex couples can enjoy the same status, entitlements and responsibilities accorded to heterosexual couples through marriage, constitutes a justifiable violation of their right to equal protection of the law," wrote the court. At a glance, the passage could be mistaken for an excerpt from last month's historic U.S. Supreme Court decision striking down key provisions of the Defense of Marriage Act.
On closer inspection, it's actually culled from a 2005 South African Constitutional Court judgment by liberal lion Justice Albie Sachs. The decision legalized same-sex marriage and gave same-sex couples all the rights and privileges as heterosexual couples, making South Africa the first, and to date only, country on the African continent to do so.
In holding that same-sex couples had the same constitutional rights as heterosexuals, the South African court drew from basic principles of American equal protection and dignity jurisprudence. The justices examined Vermont's civil union as a model for reforming domestic partnership. They quoted from the Massachusetts's Supreme Court case legalizing same-sex marriage and grappled with the equality principles announced in Loving v. Virginia, which held that laws restricting interracial marriage were unconstitutional.
In crafting a remedy, the Court drew from interim measures laid out in the landmark case of Brown v. Board of Education, where the U.S. Supreme Court overturned the notorious separate but equal doctrine.
The irony of founding a new constitutional right to equal marriage on an American system that itself did not recognize it was not lost on the Deputy Chief Justice of the South African Constitutional Court, Dikgang Moseneke, who, in a speech to Georgetown Law students last year said, "let me to display patriotic vanity about our constitutional architecture. Respectable academic and judicial opinion, other than South African, considers our final constitution a reasonable model for progressive, modern constitution-making." The American model's global influence, he said, was "in decline."
In fact, other foreign courts with progressive constitutions have begun to shy away from relying on American law to support their judgments. A 2012 study by David S. Law of Washington University in St. Louis and Mila Versteeg of the University of Virginia found that "the U.S. Constitution appears to be losing its appeal as a model for constitutional drafters elsewhere." Perhaps this is due to the fact that, as the New York Times' Adam Liptik wrote, "the rights guaranteed by the American Constitution are parsimonious by international standards, and they are frozen in amber."
The decision to overturn the Defense of Marriage Act, however, has an uncanny potential to realign the U.S. constitution with the emerging international consensus on human rights issues and recast it as a modern source of jurisprudential power. Momentum in favor of allowing gays and lesbians to marry has been building abroad. Of the 15 countries that allow same-sex couples to get married, eight have legalized it since 2010.
Given the present attention on same-sex rights abroad – a host of countries, as ideologically and religiously diverse as the United Kingdom and Bolivia, are actively considering same-sex legislation, and the Indian Supreme Court is currently preparing to decide whether anti-sodomy laws should be struck down – the international press and legal community paid unprecedented attention to the DOMA legal battle.
Speaking to raucous audience on a dreary evening at the University of Cape Town during his Africa tour two weeks ago, Obama made the case that American values – including equal treatment for all people – should continue to be exported abroad. "Now, I know that there are some in Africa who...see America's support for these values – and say that's intrusive. Why are you meddling? I know there are those who argue that ideas like democracy and transparency are somehow Western exports. I disagree," he said.
With the U.S. Supreme Court's relatively progressive position on a highly publicized, hot-button issue like gay rights now at his disposal, Obama can make a far stronger case that the American constitution – as well as the values it supports – is still the international standard for freedom, equality and dignity in the 21st century ... even if it was a bit late to the altar.
Drew F. Cohen is a law clerk to the Chief Justice of the Constitutional Court of South Africa.