A very thoughtful paper, Tim.  I think it raises a number of interesting issues regarding national sovereignty, cultural relativism, and international law.  Whether these concepts can be fitted together into a clear policy solution is an open question.  That said, I have some thoughts and questions I’d like to throw out.

First, I must disclose that I have often argued against cultural relativism, but I think it is nonetheless a very useful tool for shaping policy and legal analysis.  And, personally, I think you’ve done a good job of using it here.  I’d agree that respect for the laws and cultures of different nations should lead us to honor same-sex marriages that were legally formed in another country.  I think there’s an analogy to contract law here.  For example, if you make a deal with one of your friends in Dublin, you don’t expect to somehow become exempt from the obligations arising from that deal when you move back to Pittsburgh (unless, of course, that was stipulated in the contract).  This makes intuitive sense because, in this example, nothing aside from your geographic location has changed.  I’ve yet to hear any good argument as to why this shouldn’t apply to a marriage (or civil union) contract.

Second, and where things get a bit more confusing, is toward the end of your paper, where you propose that we divvy up certain rights arising from marriage:

However, any right or obligation of marriage that can be recharacterized as a nonmarital right- such as a right to contract, or a parent-child relation, or an obligation created by judicial judgment should be recognized while rights that are not capable of being so recharacterized, such as the right to file joint state tax return, should not be recognized.

To me, this seems potentially dangerous.  How are we to determine what marital rights will be respected and what marital rights will not be respected?  Parent-child relations should most likely be preserved.  As you mentioned, “best interests” standards tend to be vague and easily manipulable.  But why the rights of a judicial judgment?  I am nothing of an international law scholar, but my gut tells me that it might be controversial to give res judicata effect to decisions of foreign courts.  And why not recognize certain tax privileges?  Granted, I can see an obvious administrative and economic deterrent to recognizing such privileges, but are these reasons good enough?  In short, where do we draw the line?

Finally, I’d like to hear some thoughts on the tension between cultural relativism and fundamental rights.  As we have seen in analyzing U.S. Supreme Court decisions, fundamental rights are often hard to define.  Is there a way that we can start defining these on a global scale?  If not, is cultural relativism our only alternative?

— Daniel Corbett  

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