The US Court of Appeals for the Ninth Circuit is currently considering the constitutionality of Proposition 8, the 2008 initiative that amended the California Constitution to provide that only marriage between a man and a woman would be recognized by the state. In determining the initiative’s constitutionality, the court will follow the approach of Judge Vaughn Walker of the US District Court for the Northern District of California, subjecting Proposition 8 to analysis under the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the US Constitution. These clauses will invite scrutiny of the validity of asserted governmental interests in confining marriage to opposite-sex couples. However, traditional constitutional analysis does not involve examination of US obligations under international human rights law. Neglecting to analyze these obligations removes a valuable reference favoring same-sex marriage recognition, bucking an increasing trend among foreign courts.

The principal obligations relevant to the issue of same-sex marriage are contained in the International Covenant on Civil and Political Rights (ICCPR). The US signed the ICCPR in 1977 and ratified it in 1992, subject to a number of reservations, understandings and declarations. Article 26 of the ICCPR provides that all persons are equal before the law and entitled to equal protection under it. In this respect, state parties must guarantee equal and effective protection against discrimination on a number of grounds, including sex, race and “other status.”

The Human Rights Committee is a body of independent experts charged with overseeing the implementation of the ICCPR by state parties, and it carries out this task in two ways. First, it periodically issues “general comments” that interpret the rights set out in the ICCPR. Second, it sits in a quasi-judicial capacity and makes non-binding recommendations in response to communications by nationals against those state parties that have acceded to the First Optional Protocol to the ICCPR.

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