9/19/14
ECHR: No Right to “Same-Sex” Marriage, But for How Long?
On July 16, 2014,
the European Court of Human Rights affirmed in Hämäläinen v. Finland that “same-sex” marriage is currently not a right protected under
the European Convention on Human Rights. But for how long? To resolve the
question of whether the Convention provided a right to “same-sex” marriage, the
Court did what it most always does: survey the laws of member States and Council
of Europe policy to determine whether a “European consensus” exists on the
issue. Thus, rather than interpreting the text of the Convention based on the
text’s plain, historical meaning, the Court interprets the text based on the
modern-day interpretations of other nations. How many nations and which nations
is anyone’s guess. In Hämäläinen, because
only ten member States allowed “same-sex” marriage, the Court held that no
European consensus currently existed, and therefore there was no violation of
Article 8.
Sure, this
case is a victory for those opposed to “same-sex” marriage. But again, for how
long will this victory last? If five more member States pass laws in favor of
“same-sex” marriage, will this constitute a consensus, therefore magically transforming
the meaning of Article 8 into requiring a member State to allow “same-sex”
marriage? If not five, how about ten? What if nations outside Europe continue
adopting “same-sex” marriage? Could the Court then find a consensus? It
certainly has in the past. In Goodwin v.
United Kingdom, the Court found a “right” in the Convention to have the
government recognize a person’s sex change based on an “international trend,”
and this despite the fact that there was no “common European approach” on the
issue.[1]
The fact is that European consensus is hardly a legal standard by which the
Court can interpret the Convention. It is ambiguous, unpredictable, and provides
judges an incredible amount of discretion. Indeed, one commentator notes that “[t]he ECHR’s experience of over thirty years
in hundreds of cases demonstrates that it is simply unable to articulate and
apply a clear, predictable, and workable consensus standard.”[2] Without
a clear, predictable legal standard, the rule of law will be destroyed. And
upholding the rule of law, not expanding the “rights” covered by the
Convention, is what will preserve the work and influence of the European Court
of Human Rights for years to come. For a comprehensive discussion on this
issue, see my most recent article: Preserving the European Convention on Human
Rights: Why the UK's Threat to Leave the Convention Could Save It.
-- S. Ernie Walton, Esq.
Administrative Director, Center for Global Justice, Human Rights, and the Rule of Law
Adjunct Faculty, Regent Law
[1]
E.g., Goodwin v. United Kingdom, 35 E.H.R.R. 18, para. 85 (2002) (“The Court accordingly attaches less
importance to the lack of evidence of a common European approach . . . than to
the clear and uncontested evidence of a continuing international trend in favour not only of increased social acceptance of transsexuals
but of legal recognition of the new sexual identity of post-operative
transsexuals.”) (emphasis added).
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