Living Instruments, Judicial Impotence, and the Trajectories of Gay Rights in Europe and in the United States

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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?

Third, in both Europe and in the US there is another, second-order big question: even if know what the standards for making this decision should be, who gets to decide – should it be the courts, or democratically elected and accountable legislatures? Should courts be protecting minorities from oppressive majorities, or should they maintain a space in which the minorities should seek to persuade the majority, in the democratic process, to give them the recognition that they actually seek? This of course brings into the picture a whole set of deep questions about the role and limits of the judicial function, coupled with a political dynamic that plays itself differently in each society.

Finally, this political dynamic is manifest in Obergefell. Who decides? Justice Kennedy decides, that’s who, and the price for his swing vote was apparently that the four other (liberal) justices in the majority should keep their mouths shut and their concurrence complete. In fact, when reading his opinion for the Court I was struck by both how non-technical (even unlawyerly) it was, and by how its author was (rather self-consciously) writing grand pages for the ages. There’s nothing in the opinion about tiers of scrutiny, rational basis, etc., and very little – almost bizarrely so – about equality, but plenty about some four principles and traditions that in Justice Kennedy’s view mandate the result that he reached. And then there are these nice passages obviously written to be quoted, like so:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

Awww. The dissents, for their part, emphasized the need to respect the democratic process, which was in fact already leading to marriage equality, rather than impose a constitutional solution by judicial fiat that would stifle that democratic process and create further controversies about judicial self-empowerment. Justice Scalia’s dissent was predictably furious (he opens by calling the majority opinion “a threat to American democracy”) and  very, very quotable:

Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect…. Thus, rather than focusing on the People’s understanding of “liberty”—at the time of ratification or even today—the majority focuses on four “principles and traditions” that, in the majority’s view, prohibit States from defining marriage as an institution consisting of one man and one woman.

And this must be the most supremely apoplectic footnote 22 ever written:

If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.

We should now reflect for a moment and think about why the US Supreme Court decided an Obergefell, but the European Court only decided a Schalk and Kopf v. Austria, holding that (at least for now) there was no pan-European right to gay marriage.To do that let us just quickly trace the trajectory of gay rights in the US and in Europe. It was in 1981 that the Strasbourg Court said in Dudgeon that homosexual intercourse could not be subject to criminalization, which would violate Article 8 of the Convention. But on the other side of the Atlantic, in the 1986 Bowers v. Hardwick case, the US Supreme Court upheld precisely such criminalizations. That decision got overturned – in an opinion by Justice Kennedy – only in 2003, in Lawrence v. Texas, more than twenty years after Dudgeon. It was in 1999, in Lustig-Prean and Beckett v. the United Kingdom and Smith and Grady v. the United Kingdom that Strasbourg said that gay people should be allowed to serve in the military, but it took until 2011 to repeal Don’t Ask, Don’t Tell in the US. And it was in 2003, in Karner v. Austria, that Strasbourg ruled that it would be discriminatory for the state not to provide specific legal benefits to homosexual couples that it provided to heterosexual couples.

So it seems that Europe was well ahead of the US when it comes to the judicial recognition of gay rights. Today, however, the picture seems rather different. Instead of an European Obergefell, in 2010 Strasbourg delivered Schalk and Kopf. While a unanimous Court rejected the applicants’ gay marriage claim under Article 12 of the Convention on more or less formalist and textual grounds (fine by me), it was divided 4 to 3 on the equality, Article 14 issue: if the state provides marriage to straight couples, how can it justify not treating gay couples equally? The Court was kind to say that two gay people living together enjoy a “family life” in the sense of Article 8, but then went on to find no violation of that article taken together with Article 14, even though the respondent state made no argument as to why the difference in treatment is actually justified. The Court, as it now it does so often in this age of subsidiarity, only invoked the mantra of lack of European consensus-margin of appreciation, even though that deference doctrine still requires some justification to be offered for the differential treatment that was identified.

Then, in 2014, the Grand Chamber of the European Court decided Hämäläinen v. Finland. The applicant in that case was a transgender person who was married before her transition, and complained that her rights were violated when full recognition of her new gender was made conditional on the transformation of her existing marriage into a registered partnership. Here we have a link between gender identity and same-sex marriage: allowing the applicant to legally be treated as a woman while maintaining the marriage would mean that the marriage would turn into a same-sex one, which Finnish law did not allow for. And here the Court again deployed the concept of the European consensus (para. 74):

Thus, it cannot be said that there exists any European consensus on allowing same-sex marriages. Nor is there any consensus in those States which do not allow same-sex marriages as to how to deal with gender recognition in the case of a pre-existing marriage. The majority of the member States do not have any kind of legislation on gender recognition in place. In addition to Finland, such legislation appears to exist in only six other States. The exceptions afforded to married transsexuals are even fewer. Thus, there are no signs that the situation in the Council of Europe member States has changed significantly since the Court delivered its latest rulings on these issues.

The margin due to states on these sensitive moral and ethical issues was thus wide. The applicant had other options. But the Court then went on to approvingly cite and reinforce Schalk and Kopf para. 71: “The Court reiterates its case-law according to which Article 8 of the Convention cannot be interpreted as imposing an obligation on Contracting States to grant same-sex couples access to marriage (see Schalk and Kopf v. Austria, no. 30141/04, § 101, ECHR 2010);” and para. 96: “While it is true that some Contracting States have extended marriage to same-sex partners, Article 12 cannot be construed as imposing an obligation on the Contracting States to grant access to marriage to same-sex couples (see Schalk and Kopf v. Austria, cited above, § 63);” It then laconically dispensed with her equality claim, para. 112: “The Grand Chamber agrees with the Chamber that the applicant’s situation and the situations of cissexuals are not sufficiently similar to be compared with each other. The applicant cannot therefore claim to be in the same situation as cissexuals.” 

So there you have it: a 4 to 3 Chamber judgment was elevated in authority by a 14 to 3 Grand Chamber judgment. This means that there shall be no European Obergefell, at least not anytime soon. But what about civil unions or registered partnerships, you may ask? Well, in the 2013 Vallianatos and Others v. Greece case the Grand Chamber, by 16 votes to 1, said that the exclusion of same-sex couples from a form of registered partnership in Greece was unjustified and discriminatory. Key to this finding was the Court’s appraisal of the European consensus: of the 19 states which had some form of registered partnership, only two (Lithuania and Greece) excluded same-sex couples from their scope (para. 91). Note here what the Court does not say – it does not say that every European state must create some form of civil union or registered partnership, but that once they do, they have to include same-sex couples in this new institution. But states that only have marriage do not need to extend it to same-sex couples.

And just this week we had a Chamber judgment in Oliari and Others v. Italy, dealing with the fact that Italy had no institution such as a civil union or registered partnership that would have included same-sex couples. The Court says – unanimously – that Italy should provide such unions. But even so the Court’s reasoning does not seem to go beyond Vallianatos. It is on the knife’s edge, focusing repeatedly on Italian-specific facts and context of this case, above all on the findings of the highest Italian courts that the legislature should create a system of civil unions, which the legislature failed to do. In fact, three judges wrote separately to emphasize this unique Italian context, and the narrowness of the Court holding as they would have wanted it to be. Even having said that, it is not easy to read the Oliari judgment as requiring all European states to have a system of civil unions or registered partnerships, and at that one which would include same-sex couples. In fact, that ambiguity seems to have been the whole point of how the judgment was drafted.

What, then, is the explanation for these diverging trajectories of the protection of gay rights in the US and in Europe? Why and how did the US actually overtake Europe? Why and when did the Strasbourg Court, originally so progressive in its protection of gay rights, become so timid?

The answers to these questions are not to be found, I think, in the different interpretative traditions or methodologies in the US and Europe, and certainly not in the Vienna Convention on the Law of Treaties. There is in my view only one real explanation: social changes in the US outpaced those in Europe as a whole, and in a much enlarged Europe at that, with LGBT people of all stripes becoming more visible and accepted. And it is these changes – having openly gay neighbours, who have their openly gay partners, who might have (adopted) kids, that go to the same school as your kids, and so on, in addition to the presence of LGBT people like Caitlyn Jenner in the media – that ultimately enable legal changes, whether through the democratic process or through the courts. Without this – without the stories with which Justice Kennedy actually begins his opinion (a surviving gay partner who by law cannot have his name listed on his partner’s death certificate so that “they must remain strangers even in death”; a lesbian couple, both nurses, who adopted three children with special needs; an Afghan war veteran and his husband), and the sheer number of such stories – the courts would never have the guts to impose legal changes, no matter how they later couch their reasoning, e.g. in the grand moralizing way of Justice Kennedy.

This brings us back to a divided Europe, specifically the 47 member states of the Council of Europe. While social changes in Western Europe have by and large kept pace with the US, Eastern Europe is (still) a very different story. Think of Russia, where two apparently gay guys can’t walk on the street together, let alone have a gay pride parade, where the Constitutional Court itself upheld the validity of law banning “gay propaganda”, and where (like in many other places) homophobia is a political strategy. Imposing gay marriage there, and doing so all the way back from Strasbourg, would be little short from science fiction.

Consider, in fact, how Justice Scalia concludes his Obergefell dissent: “With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.” In Strasbourg, however, at least today, the European Court needs little reminding about its own impotence. While it may sit at the apex of the comparatively strongest regional human rights system, that strength, which took so long to build, is structurally quite fragile. When a “nice” European state like the UK is willing to endanger that system for the sake of its own internal daily politics and with regard to Strasbourg decisions which are objectively of minor societal importance, can you imagine how a Strasbourg judge might feel about the backlash that a premature gay marriage decision might provoke?

It is this fear of escalating an already existential crisis, and the institutional weakness of the European Court when compared to the US Supreme Court, that explains why there will be no pan-European Obergefell in the short-to-medium term. This is why Strasbourg uses the twin devices of the margin of appreciation and the European consensus approach: to avoid going too far, too quickly. In fact, we can observe this approach even in the celebrated 1981 Dudgeon judgment (para. 60) – yes, Northern Ireland was forced to decriminalize sodomy, but only after a “great majority of the member States of the Council of Europe” already did so. And yes, that approach can rightly be criticised as being arbitrary both as a framing exercise and in the cherry-picking of the elements of one’s sought-for consensus, but that is in fact the main feature of this approach, not a bug.

In short, if you, dear reader, were a Strasbourg judge, would you risk pissing off half of Europe by making decisions that you knew for a fact would never be implemented anyway? Fiat iustitia, pereat mundus (or, even worse, pereat Argentoratum)? I think not. Or at least only a few of the 47 sitting Strasbourg judges would be prepared to do so. In America, on the other hand, it seems exceptionally unlikely that Obergefell will produce the type of damaging counter-reaction by large segments of “the People” as did, for instance, Roe v. Wade. Justice Kennedy timed it well, even if his prose is not as good as he obviously thinks it is.

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Elizabeth says

July 23, 2015

Marvellous post, Marko.

Jakob Cornides says

July 23, 2015


it appears that you belong to those who do not believe that the separation of powers as proposed by ol'Montesquieu is still a commendable constitutional principle, or that the job of judges is simply to apply the law.

Also, are you not somewhat uncritical with regard to what you call "social changes"?

Fashionable weaslewords though they are, neither "privacy" nor "equality" provide a sound basis for same-sex "marriage".

The right to privacy essentially means that the state should not spy and pry on its citizens, not install videocams and microphones in their homes, not open their letters or listen in on their telephone conversations, etc. In a wider sense, it can also be argued that the state should abstain from needlessly regulating citizens' lives, i.e. not adopt unnecessary legislation.

So, if you are gay or trans, your main privacy right is to keep that fact secret. In addition, you might argue that the state should not punish any given sexual behaviour as long as it does not damage anyone. (The innovation in Dudgeon and Lawrence was that the Courts came to the conclusion that sodomy does not damage anyone's rights, provided it's consensual.) That seems widely accepted by now. But of course there still are "private" behaviours that the state can and must punish, such as child abuse. "Privacy" isn't an absolute right.

With regard to marriage the privacy argument does not work because marriage is a PUBLIC status. Same-sex couples who want to "marry" are not seeking respect for their privacy, but they want a public status, public approval, and the benefits that come with it. That is not only not the same thing as privacy, but it is nearly the opposite.

Indeed, people calling for the legal recognition of same-sex "marriages" are calling for what Article 8 ECHR should prevent States from doing: the adoption of unnecessary legislation.

What remains are "equality" claims. But those claims pre-suppose the absurd reduction of marriage that one finds in Obergefell and, regrettably, also in your post. The by nature fertile intercourse between a man and a woman is not equal to the by nature sterile intercourse of homosexuals. Where then is "equality"? The assumption of "equality" is only reached by picking and choosing, in a quite arbitrary manner, one or two criteria in which the relationships are somehow comparable, and discarding all the rest. In this way one can find "equality" between a spider and an elephant (both are animals), or between a Space Shuttle and my dishwasher (both are machines).

If two persons of the same sex can marry each other, what is marriage? It is reduced to two elements: two-ness and "love". But both elements are arbitrary: the love between A and B is not commensurate to the love of A and C, or C and D. Who is going to measure "love", and why should the state "reward" it? Also, it is not clear why marriage, if it is not restricted to the union between ONE man and ONE woman, could not be between three or more persons, or between a father and his daughter, or a mother and her son, or between siblings, or, or, or...

Indeed, if one takes as a point of departure what Justice Kennedy has written in his "straining-to-be-memorable" prose in Obergefell, the only possible conclusion is that the SCOTUS will find it very difficult to reject "equality" claims from those who say claim that they can find their fulfilment only in a mariage-à-trois.

Thus I think the SCOTUS majority should not have dismissed the argument that marriage has to do with procreation so light-handedly. Nor should you. The argument stands every serious-minded scrutiny.

Ed Bates says

July 24, 2015

Marko, for me your provocative (and valuable) post focuses on the dilemmas and quandaries of the judicial protection of human rights, and makes me think of how, in that connection, we should view the present.

Looking back over the Convention’s life one could say that it was the Court’s capacity to deliver judgments such as Dudgeon v UK that made Strasbourg’s reputation. Today, it seems that some of the judgments being delivered by the Court are being criticised for failing to live up to that reputation, and the mission the Court established for itself during that era (‘for itself’ – as the Strasbourg Court’s role in cases such as Dudgeon was not necessarily foreseen even in the mid-1960s).

Dudgeon may be looked back upon nostalgically today as a landmark – ground-breaking for an international Court to adopt back in the early 1980s - , but as Marko highlights (his penultimate paragraph) in some respects it was not radical at all when assessed by reference to the contemporary practice of western Europe. The following questions arise for me:

Are today’s critics expecting too much of the Court and looking back with rose-tinted spectacles on the past (in terms of what the Court was ever able to deliver – did the transsexual cases of the 1980s and 1990s, until Goodwin, for example, reveal restraint or realism on Strasbourg’s part)?

Does Oliari (and numerous other cases criticised in recent years for lack of ambition on the judges’ part, or an abdication of their responsibility) demonstrate the Court in retreat, fearful of the anti-British mood? Or is it that these cases are revealing the natural limitations of what the Court can do in the context of a multi-lateral treaty arrangement subscribed to by – today - 47 sovereign States? (Perhaps these last two questions are not mutually exclusive alternatives, and both issues identified are of some relevance).

Finally, at a time when (in the UK) there is talk of repeal of the HRA, could one say that the timidity (IF that is what one may label it) of the Strasbourg Court compared to the US Supreme Court underlines the case for a UK Bill of Rights that is not tied to Strasbourg’s limited (necessarily) vision of human rights? Put another way, could dissatisfaction with Strasbourg’s ability to deliver some standards/ outcomes underline why the UK Supreme Court should be less tied to the minimum level of protection that the (bringing rights home) HRA/ Convention provides? Freed from that model could it have the liberty to go their own way more (at least more than they currently do), and perhaps emulate, a little more at least, the US Supreme Court?

So there may be some good arguments for reform of the HRA – if done correctly. But there is a further twist and dilemma here.

It seems to me that some of those in the UK who are most critical of the Strasbourg Court for failing to go far enough are intent on ensuring the HRA is not reformed. I completely understand why that may be so. It seems to be the case that there is a fear in the current political climate that if the HRA-reform door is opened elements in the Conservative party will take the opportunity to degrade those aspects of the Convention’s protection (at the domestic level, at least) that they regard as inappropriate and unpalatable.

Larry Helfer says

July 24, 2015

Those interested in an empirical analysis of the ECtHR's influence on national-level protection of LGBT rights may be interested in this article that Erik Voeten and I published last year:

We find that ECtHR judgments increase the likelihood that all European nations—-even countries whose laws and policies the court has not explicitly found to violate the European Convention—-will adopt pro-LGBT reforms.... Our finding does not, however, imply that the ECtHR aggressively pushes countries to adopt policies that governments and publics oppose. Rather, the Strasbourg Court engages in a kind of majoritarian activism. It recognizes LGBT rights claims that it had previously rejected only when at least a majority of CoE member states have already done so. Decisions that embrace an expansive interpretation of the convention at this juncture appear to influence lagging countries to adopt progressive LGBT rights policies earlier than these countries otherwise would have.

Marko Milanovic says

July 25, 2015

Many thanks to everyone for your comments.

Jakob, a couple of points:

I certainly do support the separation of powers principle. But it is a gross oversimplification to say that the 'job of judges is simply to apply the law.' That kind of statement assumes that the application of the law is some kind of straightforward robotic exercise, even when the law in question is couched in vary vague and general terms, which by their nature refer to much deeper considerations of the justness/fairness/morality of any given outcome. An unstated irony in your comment is that the one system in which the separation of powers was implemented the most rigidly - the US one - has had decades of debates and controversies on the nature of constitutional adjudication, and decades of theories about interpretation intermingled with theories of judicial constraint (e.g. originalism).

I also find it ironic that you accuse the US Supreme Court (and also me, even though I never said I embraced the Court's reasoning) of taking an absurdly reductionist approach to marriage, when you yourself take such a reductionist approach to privacy and liberty, not to mention to marriage itself with your focus on procreation. With regard to equality, you seem to be echoing Peter Westen's seminal Harvard Law Review piece on the empty idea of equality, where Westen argues (quite correctly) that the precept that we should treat those who are alike alike presupposes a moral rule by which they are determined to be alike. That's very true. But once fertility/the ability to directly procreate is NOT seen as a sine qua non element of marriage, i.e. once we allow men and women who are biologically incapable of having children, or simply DO NOT WANT to have children, to marry and have all the legal rights, obligations and privileges that come with marriage, I fail to see how the procreation point still works as grounds for distinction. This is even more true when you consider that same-sex marriages CAN advance the more general, and one would say much more important, goal of child-rearing, well-being and care, as is the case with one of the families in Obergefell (a lesbian couple with three kids) and hundreds of thousands of such families in the United States. Nor is there any plausible reason to suggest that opening up marriage to same-sex couples would lead to fewer different-sex marriages or few children in the grand scheme of things (would you or I be discouraged from marrying someone simply because a gay couple can also do so? why?).

In other words, the opponents of same-sex marriage have both failed to identify a societal harm, and have failed to explain how, for example, Martina Navratilova's relationship with her partner is different from Angela Merkel's relationship with hers. The only possible difference that remains is bare moral disapproval alone, or the yuckiness factor that I talked about in the post, which may or may not be evident from your use of scare quotes whenever you use the words same-sex "marriage." (Fine by me). That, on the other hand, raises a more fundamental question of whether moral disapproval alone can be the basis for rights restrictions, as I discussed in the post (my views on this are not set in stone, btw).

Ed, I completely agree with your comment. I think it's clear that this whole set of issues is an excellent example of a court managing the utopia/apology dynamic, and finding doctrinal devices (like the European consensus) that enable it to do so without suffering too much institutional and reputational damage. I do agree that in principle a domestic constitutional court could be in a much stronger position, that would enable to it make more expansive rulings (as e.g. in the US or Germany). But it could also go the other way, especially in Eastern Europe. Plus the peculiarities of the British constitutional system are such that they would make such a development much more difficult, regardless of the whole HRA saga.


Thanks for pointing us to yours and Erik's empirical piece. I think it certainly corroborates the Court's own long-term institutional view of itself (at least as externally observed by me!) - shape trends, but not too far too fast, force laggers to join the mainstream once a mainstream is actually formed, and if not let each state do its own thing within certain limits (for example, also the right to life of the embryo and abortion, e.g. in Vo v. France).

Jakob Cornides says

July 28, 2015

You seem to use the word “ironic” as a synonym for “unintentionally self-contradictory”, “inconsistent”, or “misguided”. I am not quite sure that this is a correct usage of the word, but if it is then allow me to say that the biggest of all ironies is that you are pointing at several instances in which supreme judicial instances (Grenzorgane, as Kelsen would call them) have issued decisions that could at best be described as an exploration of the extreme outer limits of legal interpretation, or at worst as the deliberate misuse of the powers conferred on them – and then go on lamenting about “judicial impotence”. If decisions like Obergefell, Karner, or Oliari are “judicial impotence”, what would a more “courageous” use of judicial powers look like? And where is the threshold beyond which even you would speak of “judicial activism”??
I fully agree that the application of the law is not always a “straightforward robotic exercise”, especially if the law, to use your expression, is “couched in very vague and general terms, which by their nature refer to much deeper considerations of the justness/fairness/morality of any given outcome”. But adopting an activist decision is always very simple and straightforward: just make the law whatever you want it to be, and don’t make too big an effort in coming forward with convincing legal arguments. Those who share the Court’s political agenda will anyway be convinced, however weak the argument may be, and those who don’t share them don’t need to be convinced. They are simply overruled. It is a question of institutional power, not of arguments.
With regard to the re-definition of marriage (as in Obergefell), it is very clear that you belong to those who don’t need to be convinced. Fair enough, it is your good right to be a supporter of that agenda.
Let me nevertheless make three points:
The first is that he question is not so much whether or not one is (politically) supportive of re-defining marriage. Instead, it is how such changes should be brought about. If you really believe in the separation of powers, then I think you should agree that the appropriate way would be through legislation, not through poorly argued decisions such as Obergefell and Oliari. In that regard I may refer you to the dissenting opinion of Roberts C.J. in Obergefell.
Second: if you believe that “once fertility/the ability to directly procreate is NOT seen as a sine qua non element of marriage … I fail to see how the procreation point still works as grounds for distinction”, then you should maybe check out whether the premise you are making is really the right one, both from a moral and a legal point of view. In that context, I would strongly recommend to make a distinction between (heterosexual) couples who marry but do not want to have children, and those who, despite their intention to procreate, remain childless. Both cases should not be thrown into the same basket. And of course it would be an absurdity to require a (heterosexual) couple that wants to marry to submit “proof” of their ability to procreate. It is perfectly legitimate to presume such ability, even if in individual cases hat ability turns out to be deficient.
And this leads directly to the equality issue: there is a big difference between a different-sex couple that, as a result of some deficiency in one or both partners, remains infertile and childless, and a same-sex couple. The latter is by nature sterile (i.e., even when both partners are perfectly healthy), whereas the first is by nature fertile (i.e. that its infertility is the result of a deficiency). This is actually quite a self-evident and basic distinction, and I am quite surprised that I need to point it out to you. So, where is the reductionism, except in your own approach to “equality”??
Third: when you speak about “a lesbian couple with three kids” or even of “hundreds of thousands of such families”, then the self-evident observation to be made is that in that case the tree kids are not those of the lesbian couple. They are either the kids of one of the women from an earlier relationship with a man, or they have in some way been adopted by the couple (i.e., are the kids of neither of them). If I wanted to be polemic, I could describe the repeated reference to “lesbian couples and their kids” as a deliberate falsification of the debate; a more charitable comment would be that it reduces parenthood to a merely social role. You probably believe that you are somehow “widening” the concept; I reply to you that precisely this widening will always and inevitably lead to dilution and reduction. Not only in the case of “family” and “parenthood”, but with every term to which you apply such widening. Precise use of terminology is the paramount pre-condition for sound legal reasoning.
On another point, I find it regrettable that you garnish your argument with sentences such as “the opponents … have failed to explain how, for example, Martina Navratilova’s relationship with her partner is different from Angela Merkel’s relationship with hers.” I may be mistaken but it seems to me that Mrs. Navratilova is making a point of exhibiting her (by nature sterile, vide supra) same-sex relationship with another woman; i.e she wants it to be discussed in public, which is the reason why there is nothing wrong in discussing it. By contrast, neither you and me have any clue whether Angela Merkel has ever made a deliberate choice to have no children, or whether she has remained childless against her hopes. She has never spoken about this in public, and I suppose she doesn’t want the intimate details of her life to be discussed in this forum. So I would kindly ask you to abstain from such digressions.
I suppose that the point of your original post was not to discuss the for and against of same-sex “marriages”, so we can leave it at that. If you want I can at some stage write a longer piece on this blog about why I think marriage has indeed to do with procreation, and why denying this will in the long run turn marriage into a rather pointless institution. But I don’t think this is needed here. The real point is that I believe you wouldn’t be quite so enthusiastic about the ECtHR’s judicial activism (or should I say: disappointed about the Court’s failure to push this activism to even more radical extremes?) if you did not sympathise with the political agenda this Court is pursuing.
The question is not whether same-sex “marriage” is good or bad, but I think that if US States had wanted to make the legal recognition of same-sex “marriages” an obligation all across the US, they could have amended the US Constitution to that effect, and if European countries wanted to make it compulsory in Europe, they might amend the ECHR. That is the way how such things are done.

Marko Milanovic says

July 28, 2015


I feel like we are running in circles a bit, but let me briefly reply once more.

First, while it's true that I am a supporter of same-sex marriage, it's emphatically not true that I think this change necessarily has to or should be brought about in the courts. I in fact dedicated a significant part of my post to the 'who decides' question. That question is far more complex than you make it seem, and is not reducible to trivial statements about the separation of powers. It goes to the heart of interpretation as a fundamental part of the judicial function, and the rather blurry line where legitimate interpretation strays into illegitimate amendment. That line is in my view very much socially contingent - what is a perfectly acceptable interpretative practice in one state/community may not be acceptable in others. But one simply cannot say is that courts can NEVER drive change, which should ALWAYS be the province of the legislature. Not only does no democratic system that I know of actually work that way, but courts are sometimes best placed to make hard decisions that a legislature would not be able to reach, or would make only very late in the day (think e.g. interracial marriages in Loving v Virginia, or desegregation in Brown v Board, to give two US examples). Yes, this is about institutional power and not simply about the force of argument alone, but law as a social practice is precisely about institutional power and not argument alone, while constitutional judging is precisely about overriding the democratically elected legislature - sometimes, and that counter-majoritarian sometimes is notoriously hard to pin down with much certitude.

This is why I tried to explain in my post how particular outcomes will be driven by such considerations of institutional power, rather than by theoretical positions of what the proper limits of interpretation should be. This is also why, if I was a Strasbourg judge, I would be much more inclined to be cautious than I am in my comfortable position as an academic. This is I think only natural. But such caution is itself made much more difficult if the status quo is hard to justify in objective terms, i.e. if it is difficult to identify the specific societal harm that a particular rights restriction is designed to prevent. In such cases Koskenniemi's critique of apology becomes difficult to resist.

This brings me to your position on same-sex marriage - I must say that I honestly find your insistence on procreation as the sine qua non element of marriage to be quite perplexing, since it is manifestly counter-factual. In fact it seems to me that you appear to concede that if procreation was NOT an indispensable element of marriage then there would, in fact, be no legitimate reason to limit marriage to couples of the opposite sex. You seem to suggest that the only reason why we allow infertile couples to marry is that this overinclusiveness is justified by how difficult it would be in practice to establish a couple's fertility or intent to procreate ex ante. But in that regard we could very easily conceive of a system whereby, for instance, a man and a woman would have to avow to make their best effort to have children, even if in the end they do not. But we simply don't ask that, although we do require them to declare other things - we do not require even some kind of tentative intention to procreate as a condition to enter into marriage, or at least I know of no such modern legal system. In fact most people (as far as I can gather) would find it an intolerable intrusion into individual autonomy to for the state to require such a thing. And we allow people who are OBVIOUSLY "by their nature sterile," as you put it, to enter into marriage - say women above a certain age. Would you prevent two 60+ year-olds from marrying even if they clearly cannot have children? Whatever the purpose of their marriage, it cannot be procreation.

In short, we allow whole classes of people who either don't want or can't have children to marry. Similarly, most legal systems have moved to no-fault divorce rules, which also disrupts the link between fertility and marriage a la Henry VIII. And we have plenty of ways in which a state can specifically stimulate procreation regardless of marriage (e.g. child benefits). Once we have done all this, as I have argued above the ONLY possible reason for not allowing same-sex marriage is animus or moral disapproval pure and simple. If you do not wish to make that claim, I simply fail to see how exactly does allowing one further class of people into the institution of marriage damage that institution. Are you really saying that marriages in the UK are somehow weaker than those in Germany, simply because the former allows gays to marry whereas the latter does not? That the state's (perfectly legitimate) interest in promoting procreation is thereby somehow impinged, e.g. that fewer children will be born? That the marriage of a heterosexual couple is somehow ipso facto sullied by the marriage of homosexual couple? I simply fail to see how that's the case, unless, again, you want to make an argument about sin or moral turpitude, which you seem remarkably reticent in doing.

Please do feel free to have the last word.

Jakob Cornides says

July 29, 2015


I appreciate your generosity in letting me have the last word ;-)).

Your candid avowal that you support same-sex marriage deserves to be answered by my equally candid avowal that indeed I believe that re-defining marriage is harmful for society. Not so much because of "moral turpitude" (your own words...) but because it simply means that marriage will cease to exist as a useful institution. As Momtesquieu (again he!!!) wrote: les loix inutiles affoiblissent les loix necéssaires.

In any case, I think your qustions regarding issues like "moral turpitude" or "harmfulness" are widely beside the point. Even accepting (for argument's sake) your view that the re-definition of marriage would somehow be politically/socially desirable, it remains that the (perceived) desirability of legislative change is not a criterion upon which judicial instances like the SCOTUS or the ECtHR can base their judgments. The tasks of both institutions are very closely circumscribed: the SCOTUS must decide whether laws are incompatible with the US Constitution, whereas the ECtHR has to assess whether in an individual case an applicant's Convention rights have been violated.

I don't think I have to engage with the rest of your argument: you seem to be shooting at a bogeyman. I have not said, nor is it my opinion, that "courts can NEVER drive change". But the question always is whether they are acting within their competence.

If you really are interested in my views about "societal harm" and "moral turpitude" do let me know. I will then write a separate post for this blog. I think the subject would deserve a more in-depth discussion, i.e. a separate thread.

That's all for now.