Legalizing Same-Sex Marriage: An Obligation Not a Decision

Abstract

Regardless of race, ethnicity, or religion, men and women across the world are guaranteed, under international law, the opportunity to enter into marriage with one another. However, throw sexual orientation into the mix, and the right to marriage is no longer universally applicable. Same-sex marriage, a major source of contention in current U.S. politics, is prohibited by a majority of the world's nations. While state's laws that deny same-sex couples the opportunity to legally marry are discriminatory, does an international human right protecting gay marriage exist? There is an international human right to gay marriage, and denying same-sex couples the right to marry is a violation of international human rights law. In accordance with both treaty law and international customary law, states are obliged to ensure all individuals the fundamental right to marriage. Refusing same-sex couples the right to marry violates the principle of nondiscrimination and the individual's right to privacy, marriage, association, and dignity.
A worldwide trend towards legalization of same-sex marriage indicates the increasing willingness of states to guarantee same-sex couples the right to marry on the basis of opinio juris. In the first section of my paper, I discuss the philosophical arguments behind legalization of same-sex marriage and demonstrate that in denying same sex couples the right to marry, states are essentially denying them access to a number of other basic human rights. The second section of my paper focuses on a number of specific treaty provisions that indicate that a universal right to marriage already exists. Next, I discuss the responsibility states have to allow all couples to marry based on international customary law, beginning with an overview of the sources of international law. I then draw upon a number of articles and cases to demonstrate the increasing willingness of states to incorporate principles of international customary law into their domestic law. The next two sections are devoted to discussing the ten countries that have legalized same-sex marriage and the six1 U.S. states that have legalized it. In the final section of my paper I discuss the most recent efforts of the international community to recognize the universality of the right to marriage, focusing on the Yogyakarta Principles, which have been crucial in influencing international gender and sexuality laws.