Comments on: No Right to Same-Sex Marriage under the ECHR http://www.ejiltalk.org/no-right-to-same-sex-marriage-under-the-echr/ Blog of the European Journal of International Law Thu, 09 Feb 2012 00:55:12 +0000 hourly 1 http://wordpress.org/?v=3.3 By: The De Facto Same Sex Family and Irish Law - Human Rights in Ireland http://www.ejiltalk.org/no-right-to-same-sex-marriage-under-the-echr/comment-page-1/#comment-2045 The De Facto Same Sex Family and Irish Law - Human Rights in Ireland Thu, 01 Jul 2010 20:13:23 +0000 http://www.ejiltalk.org/?p=2266#comment-2045 [...] judgment in Schalk and Kopf v. Austria has been much commented upon in the last while (see here, here, here and here). In Schalk, the ECtHR found that there was no violation of Article 8 or Article 12 [...] [...] judgment in Schalk and Kopf v. Austria has been much commented upon in the last while (see here, here, here and here). In Schalk, the ECtHR found that there was no violation of Article 8 or Article 12 [...]

]]> By: Guy http://www.ejiltalk.org/no-right-to-same-sex-marriage-under-the-echr/comment-page-1/#comment-1934 Guy Mon, 28 Jun 2010 15:45:04 +0000 http://www.ejiltalk.org/?p=2266#comment-1934 I agree. If they know a Martian that calls homosexual unions "marriage", then they can get him (it?) to marry them. I agree. If they know a Martian that calls homosexual unions “marriage”, then they can get him (it?) to marry them.

]]> By: Mihai Martoiu Ticu http://www.ejiltalk.org/no-right-to-same-sex-marriage-under-the-echr/comment-page-1/#comment-1931 Mihai Martoiu Ticu Mon, 28 Jun 2010 12:17:11 +0000 http://www.ejiltalk.org/?p=2266#comment-1931 @Guy The “state” is only a construction of the mind. It belongs in equal degree to the homosexuals as to the heterosexuals and they have the same equal claim to the state and to its design. Therefore the homosexuals do not ask something form the state, neither the state or the majority gives something to them. If the majority can deny the homosexual minority the right to marry the homosexual minority can in equal degree deny the majority the right to marry, or go to church for that matter. There is nothing in the number of people that makes a difference in the claims that they make on the design of the world. For instance imagine that the whole humanity votes in a referendum to kill you and divide your property amongst each other. You do not have any obligation to comply with that law. If you know a Martian that gives you an energy shield that makes you indestructible the majority of the Earthlings cannot be angry at your trick and demand from you to lower your shield. And if the Martian gives you a weapon with enough power you have the same freedom to destroy the rest of the world as the rest of the world has the freedom to kill you after the referendum. What makes the difference in the legitimacy of the design is not the number of deciders but the consequences for the length and quality of lives. @Guy
The “state” is only a construction of the mind. It belongs in equal degree to the homosexuals as to the heterosexuals and they have the same equal claim to the state and to its design. Therefore the homosexuals do not ask something form the state, neither the state or the majority gives something to them. If the majority can deny the homosexual minority the right to marry the homosexual minority can in equal degree deny the majority the right to marry, or go to church for that matter.

There is nothing in the number of people that makes a difference in the claims that they make on the design of the world. For instance imagine that the whole humanity votes in a referendum to kill you and divide your property amongst each other. You do not have any obligation to comply with that law. If you know a Martian that gives you an energy shield that makes you indestructible the majority of the Earthlings cannot be angry at your trick and demand from you to lower your shield. And if the Martian gives you a weapon with enough power you have the same freedom to destroy the rest of the world as the rest of the world has the freedom to kill you after the referendum.

What makes the difference in the legitimacy of the design is not the number of deciders but the consequences for the length and quality of lives.

]]> By: Guy http://www.ejiltalk.org/no-right-to-same-sex-marriage-under-the-echr/comment-page-1/#comment-1929 Guy Mon, 28 Jun 2010 11:53:50 +0000 http://www.ejiltalk.org/?p=2266#comment-1929 Interesting thoughts, Mihai. I see the matter from a slightly different perspective. The point here seems to be not that two people cannot live together, but rather whether they have the right to ask the State to take a positive step (= calling their union a marriage). While your reasoning would be easy to follow if the Court had denied basic rights to same-sex married couples, what you suggest is the possibility for any minority to request actions from the state - which is somewhat different. Why do same-sex couples want to marry? If it is because they want the same rights accruing to married couples, then the solution is to provide unions allowing the same rights. If instead it is because they want to enjoy the 'symbolic value' of marriage, then I do not see why this urge should be satisfied. I am not allowed to be called 'mother' of my children because I am male - as long as I have the same rights as my wife I do not complain and I do not ask to be called 'mother'. It is just a matter of definition. When (if) everybody will agree that fatherhood and motherhood are the same, then I will be granted by courts the right to be called mother, but why should courts jumop ahead and invent this new definition? Similarly, if the meaning of marriage is heterosexual union recognized by the state, why should we change the definition (as long as this lack of change does not infringe upon actual rights of homosexuals)? Interesting thoughts, Mihai. I see the matter from a slightly different perspective. The point here seems to be not that two people cannot live together, but rather whether they have the right to ask the State to take a positive step (= calling their union a marriage). While your reasoning would be easy to follow if the Court had denied basic rights to same-sex married couples, what you suggest is the possibility for any minority to request actions from the state – which is somewhat different. Why do same-sex couples want to marry? If it is because they want the same rights accruing to married couples, then the solution is to provide unions allowing the same rights. If instead it is because they want to enjoy the ‘symbolic value’ of marriage, then I do not see why this urge should be satisfied. I am not allowed to be called ‘mother’ of my children because I am male – as long as I have the same rights as my wife I do not complain and I do not ask to be called ‘mother’. It is just a matter of definition. When (if) everybody will agree that fatherhood and motherhood are the same, then I will be granted by courts the right to be called mother, but why should courts jumop ahead and invent this new definition? Similarly, if the meaning of marriage is heterosexual union recognized by the state, why should we change the definition (as long as this lack of change does not infringe upon actual rights of homosexuals)?

]]> By: Mihai Martoiu Ticu http://www.ejiltalk.org/no-right-to-same-sex-marriage-under-the-echr/comment-page-1/#comment-1914 Mihai Martoiu Ticu Sun, 27 Jun 2010 07:47:18 +0000 http://www.ejiltalk.org/?p=2266#comment-1914 ==The most fundamental legal issue that it raises is whether the purely moral attitudes of a majority can ever justify the differential treatment of a minority. And if we accept that morality alone can justify the denial of legal rights,== Moral attitudes of a majority can NEVER justify the differential treatment of a minority. Every individual is free to do whatever she pleases with herself and other consenting adults, as long as their acts do not violate justified interests of others. By justified interests I mean interests that extend lives or satisfy fundamental biological/psychological needs, like the need for physical freedom. Same sex marriage do not shorten lives of others, neither prevent others from satisfying their fundamental needs. Therefore denying the same sex marriage is just a dictatorial restriction. ==The most fundamental legal issue that it raises is whether the purely moral attitudes of a majority can ever justify the differential treatment of a minority. And if we accept that morality alone can justify the denial of legal rights,==

Moral attitudes of a majority can NEVER justify the differential treatment of a minority. Every individual is free to do whatever she pleases with herself and other consenting adults, as long as their acts do not violate justified interests of others. By justified interests I mean interests that extend lives or satisfy fundamental biological/psychological needs, like the need for physical freedom. Same sex marriage do not shorten lives of others, neither prevent others from satisfying their fundamental needs. Therefore denying the same sex marriage is just a dictatorial restriction.

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