By Richard G. Wilkins
Professor of Law and Managing Director
The World Family Policy Center

Recently, the local broadcast news (at 5 and 10 p.m.) began with a story about the “Utah marriage debate.” Interesting that the reporter called it a “Utah debate.” It is not.

It is an international debate.

I became aware of international efforts to redefine marriage in 1996. In May and June of that year, I attended my first international United Nations negotiation – the Habitat II Conference in Istanbul, Turkey. I arrived in Istanbul a complete novice to international law and the now-heated debate about the meaning of marriage. Three weeks later, I had survived a grueling crash course on the complexities of national and international law. I had also discovered the arcane and troubling process by which international negotiations are beginning to control the most intimate and important details of family life.

If I had not gone to Istanbul, I might have agreed with the news reporter this evening that marriage is “a Utah debate.” But I went to Istanbul.  And I know that, although the role and meaning of marriage is at stake in Utah, the “debate” is not local. It will not end in Utah. Nor will the debate end with marriage.

June 1996 in Turkey . . .

The Istanbul conference was convened – in large measure – by a world-wide, well-organized and well-funded coalition of governments, politicians, academicians and non-governmental organizations that were eager to redefine marriage and family life. Natural marriage, based on the union of a man and a woman, was described by professors, politicians and pundits as an institution that oppressed and demeaned women. The constant claim was that “various forms of the family exist,” and all “various forms” were entitled to “legal support.” The “form” most often discussed by those in charge of the conference was a relationship between two individuals of the same gender. Diplomats, scholars and self-appointed experts repeatedly “called upon” the international community to recognize same-gender “marriage.”

During the first week of the Habitat II Conference, the U.S. State Department encouraged the efforts of these academicians and other non-governmental groups to obtain international recognition for same-sex marriage. One member of the U.S. team publicly acknowledged that the delegation had been directed to support an international mandate for same-sex marriage.

Events in Washington D.C. in the middle of the Istanbul conference disappointed, for a time, that effort.

In the spring of 1996, the House and the Senate enacted the Defense of Marriage Act (“DOMA”), which nominally protects non-consenting states from being forced to recognize same-sex marriages performed in other states.  President Clinton signed DOMA during the second week of the Istanbul conference. Following the President’s action, a member of the U.S. delegation explained to homosexual rights activists that the United States could no longer support the international call for same-sex marriage. 

Upon hearing this news, several activists became visibly upset.  But representatives from the State Department assured the advocates for same-sex marriage that the “setback” was only “temporary.” They were told that the “President signed the Defense of Marriage Act only to appease fanatics,” “DOMA is unconstitutional and will be invalidated” (a legal opinion now shared by the editors of the Harvard Law Review), and “international law will eventually require same-sex marriage, so cheer up!”

Those who sought to redefine marriage in Istanbul were not terribly cheered. I, on the other hand, was buoyed considerably because I had seen a large number of nations come together to declare, in formal UN language, that “marriage” is a union between a “husband” and a “wife.” These nations further reaffirmed that the family is the “fundamental unit of society.”

I returned from Istanbul a changed man. I had learned several things I had not known before: that international law matters a great deal and that international law has the power to change the meaning of marriage and family life. But, most important, I had learned that, by working together, people of good will can make a difference.

These are vital lessons. Just how vital became clear for many other Americans about seven years later – in July 2003.

Summer 2003 in America . . .

Istanbul was a revelation. I learned that family life – and even the meaning of the U.S. Constitution – could be changed by the outcomes of international negotiations in Istanbul, Turkey; Rome, Italy; Beijing, China; and Rio de Janeiro, Brazil. But I also learned that even a few people can make a positive difference. 

My professional and personal life changed dramatically. I became a serious student of international law. I attended dozens of international negotiations on issues related to family life. I studied and wrote scholarly papers on numerous novel developments in international law (including the International Criminal Court). I organized international conferences, including the Second World Congress of Families, to help people around the world understand both international law and the threats it posed to family life.

My constant themes were that international law was growing at a rapid pace; that many of the new “norms” (or legal rules) created by this unprecedented international process were previously unknown, untried, untested and (sadly) often hardly debated; and that these norms were about to transform longstanding and vitally important understandings related to home, family, human dignity and religious faith.

I made these extraordinary efforts (at least in part) because, following Istanbul, opponents of marriage did not relent.  They had been disappointed, but that disappointment only prompted a redoubling of their efforts. Law professors, other academicians and non-governmental organizations joined large delegations of activists in Rome, New York, Johannesburg and Geneva to vie for language that would provide the victory denied in Istanbul. By 2001, troublesome language was appearing regularly in reports, summaries and directives of UN agencies. Although the positive family and marriage language from Istanbul was finally reaffirmed in the five-year review of the Habitat Conference, other international negotiations resurrected language regarding “various forms” of the family. The words of the U.S. delegate in Istanbul regarding the eventual affirmation of same-sex marriage in international law seemed prophetic.

During this period, I warned audiences that, “within 10 to 15 years the United States Supreme Court will cite international law to change the meaning of the Due Process and Equal Protection Clauses of the U.S. Constitution.” I worried in various papers and essays that international norms supported by, among other bodies, the UN High Commission for Human Rights, might one day restrict religious liberty. (At a UN/AIDS conference in 2001, for example, the High Commission issued “guidelines” that, among other things, called upon the nations of the world to punish “vilification” of homosexual behavior – punishment that would include restrictions upon religious speech.) 

Some who read my papers or heard my lectures wondered if I had “fallen off the deep end.” Many doubted that the views of a UN agency would ever affect either U.S. law or religious liberty. More than one professional colleague suggested that my concerns regarding international law and the meaning of the U.S. Constitution verged on the irrational.

By the summer of 2003, however, the lessons of Istanbul could not be readily dismissed. Events demonstrated that international norms do have an impact – and that their impact on marriage, family life and religious liberty would be felt much more quickly than the 10 to 15 year timeframe I originally anticipated:

• In late 2002, relying in part upon international norms related to the “vilification” of homosexual behavior, courts in Canada concluded that a preacher could be fined for publishing the references to (but not the actual words of) scriptures that condemn homosexuality and thereafter reading those scriptures aloud in church
• Another Canadian court, in 2003, concluded that state authorities acted properly in firing a public school teacher because the teacher published a letter to the editor stating that, in his opinion, homosexuality was sinful.
• In July 2003, in Lawrence v. Texas, the United States Supreme Court – relying upon international law -- struck down Texas’ decision to regulate homosexual sodomy. The Court concluded that the Due Process Clause of the U.S. Constitution, construed in light of the views expressed in a brief filed by a former UN High Commissioner for Human Rights, prohibited states from “demeaning” consensual sexual relationships between consenting adults.
• A few weeks later, the Supreme Judicial Court of Massachusetts – relying upon Lawrence and itself invoking international norms – decreed that its state constitution demanded recognition of same-sex marriage. 

By the summer of 2003, the first two lessons of Istanbul were clear for many Americans who had never even dreamed of going to an international legal conference: (1) International law matters a great deal. (2) That law can have a profound impact on family life. 

What, then, about the third lesson? Can ordinary people make a difference?

Summer and Fall 2004 in Utah . . .

In June 1996, people from many nations defeated (for the moment) a proposal that would have redefined marriage. These nations came together because they recognized that marriage is a unique institution that requires a man and a woman. They recognized that children deserve a father and a mother. They understood that marriage is not a simple convention to be redefined or reconfigured at will. They understood, rather, that marriage is the fundamental unit from which all other social structures grow. 

Because of these understandings, these nations jointly affirmed that marriage is a union of a husband and wife; a union that is the very basis of society.

Since June 1996, other voices within the international community have regained substantial ground. The Canadian Supreme Court is now considering whether it will impose same-sex marriage upon that nation. Courts in other nations are pondering similar action. Two state courts in Washington ruled in favor of same-sex marriage during the past two months.

Marriage is now “a Utah debate.” 

As well as in every other state. And the nation. And the world.  This debate will be decided by ordinary people. If marriage is to be preserved as the surest support for women, men – and in particular for children – ordinary people must come together to voice their support for marriage in Utah, every other state, the nation and the world.