Evolutionary or dynamic interpretation is one of those perennial ‘big’ topics, which we e.g. recently dealt with in our book discussion on Eirik Bjorge’s recent work on the topic. Judicial pronouncements on LGBT rights are an excellent example of this phenomenon (for some of my earlier thoughts on this, see here). In particular, on 26 June the US Supreme Court rendered its blockbuster ruling in Obergefell v. Hodges, in which it held (per Justice Kennedy, and by 5 votes to 4) that the US Constitution requires full marriage equality between same-sex and different-sex couples. On reading this judgment, as well as some of the recent cases on similar questions before the European Court of Human Rights, I was struck by several points on the practical realities of dynamic interpretation that I’d like to raise in this post.
First, it really is striking that despite the many differences in the text of the relevant instruments, their history, the institutional make-up or legal culture generally, US and European courts both look at gay rights generally (or the issue of gay marriage specifically) through the same analytical lenses: on the one hand there’s private life, family life or individual liberty (or in US parlance substantive due process under the Fourteenth Amendment to the US Constitution); on the other hand, there’s equality or non-discrimination. And while there are many differences in the concrete legal tests being applied (e.g. proportionality in Europe, tiered levels of scrutiny in the US), there are many conceptual similarities as well.
Second, in both Europe and in the US most gay rights cases, whether under privacy/liberty or under equality, boil down to one basic, fundamental problem: if a right or legitimate interest is interfered with or restricted by the state (e.g. gays are denied the right to marry), what is the justification offered by the state for that restriction, and how then should a court assess that justification. In particular, can such a restriction ever be justified by reference to public morals, or tradition, or disapproval of a particular group or behaviour alone, absent any objectively identifiable, concrete individual or societal harm. One reason why Obergefell came out the way it did was that the opponents of gay marriage were simply unable to articulate any concrete harm to anyone; each argument they tried to make of that type was easily disprovable (e.g. if marriage is inextricably tied to procreation, why then do we allow infertile couples to get married, etc. – for an example of pretty brutal judicial questioning along these lines, one need only listen to this oral argument before Judge Richard Posner, and read this judgment.)
In other words, the big question is whether it would ever be legitimate to restrict marriage to opposite-sex couples simply because ‘we’ (say the majority in a popularly elected parliament) believe that same-sex couples are icky and yucky. Is a feeling or sentiment of yuckiness (or sinfulness, turpitude, taboo, whatever) enough to deny people legal rights? Many lawyers would stop here and simply say that such irrational considerations cannot form the basis for running a legal system. But wait – in the European Convention (unlike in the US Bill of Rights) we actually have explicit references to the protection of morals in the limitation clauses of several articles, including Article 8. And in fact the Court has said, for example, that it’s fine to keep a person in prison simply because that person chooses to walk in public without wearing any clothes, even though he causes no concrete harm to others in so doing – remember that naked rambler dude? He’s still naked, and still in prison (9 years on! – see here and here for very recent developments). And if yuckiness alone does not suffice, what then of polygamy or consensual adult incest and the like (and we do have cases like that), or some other parade of horribles?