Proposition 8, the US Supreme Court and ECHR jurisprudence

The US Supreme Court's consideration of the constitutionality of 'Proposition 8' (the voter-enacted amendment to the Californian Constitution which states that 'only marriage between a man and a woman is valid or recognized in California') begins on 26 March 2013.

There have been a wide range of Amicus Curiae Briefs submitted in respect of the central question addressed in Hollingsworth v Perry: 'Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman'.

Two of the Amicus Curiae Briefs, which are diametrically opposed in their analysis of the compatibility of Proposition 8 with the US Constitution, cite judgments of the European Court of Human Rights in support of their argument.

For Proposition 8

The brief prepared by the 'International Jurists and Academics' (IJA) - 17 individuals from around the world - cites several ECtHR judgments. The central argument of the IJA is that the 'overwhelming weight of international authority [...] is that reserving the formal institution of “marriage” to opposite-sex couples while supporting same-sex couples through other rights and legal mechanisms is sound public policy' and that this is 'based not on irrationality, ignorance, or animus toward gays and lesbians but on considered judgments about the unique nature and needs of same-sex couples and children'.

The IJA include ECHR jurisprudence in their consideration of a wide range of international law. They argue: 'Even the European Court of Human Rights, which has been supportive of sexual orientation claims in a large number of other settings, has declined to recognize a right to same-sex marriage' (my emphasis). 

The IJA draw on the ECtHR's judgment in Schalk and Kopf v Austria to support their claim that same-sex marriage is not a constitutional or human rights issue. They emphasise that in Schalk and Kopf the ECtHR held that Article 12 of the ECHR 'does not impose an obligation [...] to grant a same-sex couple [...] access to marriage'. They also argue that the ECtHR held that it is for nation states to make their 'own determinations about the precise incidents of marriage extended to same-sex couples even if they [do] not create precise equality with those accorded [to] married couples'. 

The IJA go on to cite the ECtHR's judgments in Gas and Dubois v France and H. v Finland to further support their argument that the ECtHR has a developed jurisprudence in respect of rejecting same-sex marriage complaints.

Against Proposition 8 

In the brief prepared by the 'Foreign and Comparative Law Experts' (FCLE) - Harold Hongju Koh, Sarah H. Cleveland, Laurence R. Helfer, and Ryan Goodman - Schalk and Kopf v Austria is cited to support the argument that discrimination in marriage on the basis of sexual orientation is in violation of the US Constitution. The FCLE argue that:

'in Schalk and Kopf v. Austria [...], which held that Austria was not compelled to elevate a couple’s domestic partnership to the status of marriage where Austrian law had not previously bestowed that status, the European Court of Human Rights expressly disavowed discrimination on the basis of sexual orientation. The court highlighted the “emerging European consensus towards legal recognition of same-sex couples,” and made clear that equal marriage was fully consistent with the European Convention for the Protection of Human Rights and Fundamental Freedoms and that same-sex couples constitute family life for purposes of the Convention.'

Which is the stronger argument?

I am (very unsurprisingly) in support of the arguments advanced in favour of same-sex marriage by the FCLE and have little sympathy with the IJA. 

However, specifically in respect of the use of ECHR jurisprudence in the briefs, I would argue that the FCLE makes the stronger case for the following reasons:
  1. Whilst the ECtHR in Schalk and Kopf v Austria did not require Austria to make marriage available to same-sex couples, it did make it very clear that it 'no longer consider[ed] that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two persons of the opposite sex'. The primary reason that the ECtHR did not find in favour of the applicants is because, relying on the margin of appreciation, it held that 'marriage has deep-rooted social and cultural connotations which may differ largely from one society to another' and, in light of that, 'it must not rush to substitute its own judgment'. The ECtHR is designed to 'supervise' 47 Council of Europe states that are widely divergent in their social, cultural and legal arrangements. Its role as a European supervisor of human rights often makes it reluctant (rightly or wrongly) to 'substitute' national laws with its own judgments. It therefore has a very different role to the US Supreme Court which acts as a national final court of appeal. The FCLE are therefore correct to emphasise the role that European consensus (and its 'emerging' nature) played in the judgment in Schalk and Kopf v Austria. They would have been justified in going further and arguing that it was as a response to a lack of consensus among European states that the ECtHR urged nation states to decide the matter of same-sex marriage for themselves. In other words, the key relevance of the judgment to the US Supreme Court is not that it sends an 'anti same-sex marriage' message, in the way that the IJA suggest, but that it emphasises the self-determination of states in the area of marriage.  
  2. In respect of the right of states to self-determination in the sphere of marriage it is also important to note, as the FCLE do, that a defining feature of the Schalk and Kopf judgment is the emphasis it places on non-discrimination. In relation to whether the exclusion of same-sex couples from marriage constitutes discrimination contrary to Article 14 of the ECHR taken in conjunction with Article 8 the sitting judges were sharply divided (by four to three) showing the smallest majority on this issue. The opinion of the three dissenting judges (one of who is now President of the ECtHR) is apposite: 'Having identified a “relevantly similar situation” [between same and opposite sex couples], and emphasised that “differences based on sexual orientation require particularly serious reasons by way of justification” [...], the Court should have found a violation of Article 14 taken in conjunction with Article 8 of the Convention because the respondent Government did not advance any argument to justify the difference of treatment, relying in this connection mainly on their margin of appreciation [...]. However, in the absence of any cogent reasons offered by the respondent Government to justify the difference of treatment, there should be no room to apply the margin of appreciation. Consequently, the “existence or non-existence of common ground between the laws of the Contracting States” [...] is irrelevant as such considerations are only a subordinate basis for the application of the concept of the margin of appreciation. Indeed, it is only in the event that the national authorities offer grounds for justification that the Court can be satisfied, taking into account the presence or the absence of a common approach, that they are better placed than it is to deal effectively with the matter'. This supports the view that exclusion from marriage solely on the grounds of sexual orientation constitutes a form of discrimination that is in violation of human rights. 
  3. The IJA cite statements subsequent to Schalk and Kopf v Austria by the ECtHR on same-sex marriage (Gas and Dubois v France and H. v Finland) to support their argument. However, these cases did not concern complaints about exclusion from marriage on the grounds of sexual orientation and the judgments make reference to same-sex marriage only in respect of the broader issues involved. In Gas and Dubois v France, for instance, the applicants were explicitly not challenging the exclusion of same-sex couples from marriage but were complaining about discrimination based on sexual orientation more generally. These judgments do not, as the IJA appear to suggest, expand the ECtHR's jurisprudence on same-sex marriage following Schalk and Kopf v Austria
  4. The IJA draw upon a number of ECtHR judgments, but their accounts are often factually wrong. These errors do not appear to be simply technical but, rather, constitute a deliberate attempt to present the ECtHR as an 'ultra liberal' court that usually finds in favour of homosexuals but has 'drawn the line' at same-sex marriage. For instance, the IJA argue that A.D.T. v. the United Kingdom concerned whether a state could 'ban private taping of homosexual acts'. This is factually incorrect, since the case concerned a complaint about the existence of law that criminalised private and consensual homosexual sex between adults (not the video recording of it). The presentation of the ECtHR by the IJA is therefore misleading.