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

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.