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32 Ind. Int'l & Comp. L. Rev. 1 (2022)

handle is hein.journals/iicl32 and id is 1 raw text is: Indiana Int'l & Comp. Law Review Volume 32 Number 1 2022 ARTICLES THE FREEDOM TO MARRY IN HUMAN RIGHTS LAW WORLDWIDE: ENDING THE EXCLUSION OF SAME-SEX COUPLES FROM MARRIAGE EVAN WOLFSON*, JESSICA TUELLER**, AND ALISSA FROMKIN*** ABSTRACT In 2017, the Inter-American Court of Human Rights issued OC-24/17, a breakthrough advisory opinion that made the Court the first human rights mechanism to explicitly hold that States have an obligation to respect same-sex couples' freedom to marry. This Article is the first since OC-24/17 was issued to analyze comprehensively the extent to which human rights law, across international, regional, and national jurisprudence, requires States to respect the freedom to marry. It argues for the reassessment of Joslin v. New Zealand and Schalk and Kopf v. Austria, earlier cases from other human rights bodies that acknowledge the rights of same-sex couples to equality and family, but so far have fallen short of ending marriage discrimination. The Article then makes the case for these couples' freedom to marry as rooted in the right to marry, the rights to equality and non-discrimination, the rights to privacy and family, and the rights to liberty and dignity, as well as, under certain circumstances, the rights of children and parents, the right to freedom of movement, and the right to be free from inhuman or degrading treatment. This Article not only argues that human rights law can be understood to protect the freedom to marry, but also demonstrates why it is urgent that it should be so understood. TABLE OF CONTENTS INTRODUCTION I. KEY INTERNATIONAL AND REGIONAL JURISPRUDENCE A. Inter-American Court of Human Rights: OC-24/ 17 * Founder, Freedom to Marry Global. ** Robina Fellow, Inter-American Commission on Human Rights. *** Associate, Cravath, Swaine & Moore LLP. The authors would like to thank the faculty and staff of the Allard K. Lowenstein International Human Rights Clinic at Yale Law School, especially Ryan Thoreson, for their contributions and support. Thanks also to the editors of the Indiana International & Comparative Law Review for their assistance in preparing this piece for publication.

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