Guest post from Adj. Prof. and Director of the Center for Global Justice, Human Rights and the Rule of Law at Regent University School of Law, S. Ernie Walton:
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.
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).
[2] Jeffrey Brauch, The Dangerous Search for an Elusive Consensus: What the Supreme Court Should Learn from the European Court of Human Rights, 52. How. L. J. 277, 287-88.
For another view of this post go to the Global Justice Blog at http://globaljusticeblog.blogspot.com/2014/09/echr-no-right-to-same-sex-marriage-but.html.
For another view of this post go to the Global Justice Blog at http://globaljusticeblog.blogspot.com/2014/09/echr-no-right-to-same-sex-marriage-but.html.
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ReplyDeleteErnie, thank you for your commitment to Truth.
ReplyDeleteI have been reflecting on how the ECHR should determine what the Rule of Law is, which is what I believe they are trying to doing when they seek to interpret the Convention in light of a European Consensus. I believe that they are attempting to discover what truths transcend culture and government (and maybe in their opinion religion as well). Because the court is not associated with any one culture, government or religion, they seek this by way of consensus. It may seem that they have no other recourse. A consensus of persons, however, is not a good basis for determining absolute truth, because if one individual human being does not have the authority or capacity to determine what is right and what is wrong, how would adding more individual human beings together change this reality. If an individual believes that there is no God, does it make it true? What if two, three, four or even a thousand individuals believe that there is no God; does it make it more true? Absolute Truth transcends the human will and therefore it does not matter how many people believe something, if it is not in accord with reality, it is not true.
I think that what we need to offer the court is the means by which they can determine what is right and what is wrong. According to the natural law there are truths that transcend time and culture. Before the fall of man, humanity was able to know these truths without difficulty. Now humanity does not know and understand clearly because of original sin. Through the Revelation of Jesus Christ and His Sanctifying Grace, humanity is able to once again come to, not only knowledge of the Truth, but also now has the opportunity to live in that Truth. But without Christ we cannot find our way, and without His Church, which He left for us to be our guide and protector while we journey in this life, who do we run to in order to interpret for us the difficult questions of this life. I believe the only way is to help guide these persons making these decisions to knowledge and experience of the Truth, He who is Christ Jesus, truly alive in His Bride the Church.