Bench Memos

European High Court Ruling on Marriage

Last month, in Hämäläinen v. Finland [link fixed], the Grand Chamber of the European Court of Human Rights issued a ruling that reiterated that European countries are not required to grant same-sex couples access to marriage. As my testimony before the House Judiciary Committee makes clear, I don’t believe that contemporary foreign laws or legal decisions ought to have any bearing on how our Constitution is interpreted. But for those—including five Supreme Court justices—who think otherwise, it may be useful to highlight the Grand Chamber ruling.

The particular legal issue in Hämäläinen was whether Finnish law on recognition of a person’s newly asserted gender violates the European Convention for the Protection of Human Rights and Fundamental Freedoms. The petitioner (or “applicant”) Hämäläinen was born male, married a woman in 1996, and fathered a child with her. In 2006, he was diagnosed as a transsexual, started living as a woman, adopted female first and middle names, and remained married. Hämäläinen’s national identity number still indicates that Hämäläinen is male. (Odd numbers, I gather, identify males.) When Hämäläinen sought to have his identity number changed to a female (even) number, the Finnish courts, applying Finnish law, ruled that no such change could be made while he remained married to his wife.

By a vote of 14 to 3, the Grand Chamber ruled that Finnish law did not violate the Convention. I’m not going to summarize the majority’s reasoning here (see ¶ 87 for a succinct account), but will instead highlight those portions bearing on the permissible definition of marriage.

Noting that Finnish law does not recognize a right of same-sex couples to marry, the Grand Chamber observes that Hämäläinen’s “claim, if accepted, would in practice lead to a situation in which two persons of the same sex could be married to each other.” (¶ 70.) The Grand Chamber “reiterates its case-law according to which Article 8 of the Convention”—which sets forth a “right to respect” for a person’s “private and family life”—“cannot be interpreted as imposing an obligation on Contracting States to grant same-sex couples access to marriage.” (¶ 71.) Surveying the current situation in Europe, it concludes that “it cannot be said that there exists any European consensus on allowing same-sex marriages.” (¶ 74.)

The Grand Chamber also addresses Article 12 of the Convention, which provides:

Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.

The Grand Chamber understands this “right to marry” as “enshrin[ing] the traditional concept of marriage as being between a man and a woman,” and it says that Article 12 “cannot be construed as imposing an obligation on the Contracting States to grant access to marriage to same-sex couples.” (¶ 96.)

For what it’s worth, the three dissenting judges—dissenting, that is, on whether Finland must allow Hämäläinen to obtain a female identity number—likewise recite that the Grand Chamber “has accepted that States have a legitimate interest in protecting marriage in the traditional sense by legally reserving marriage to heterosexual [read opposite-sex] partners.” (Dissent, ¶ 9.) 

The ECHR Sexual Orientation blog, which is very critical of the Hämäläinen ruling, offers this bottom line:

Overall, what all same-sex couples (LGB and T) can take from the Grand Chamber judgment in Hämäläinen v Finland is that the European Court of Human Rights has no intention of recognising a right to marriage under the Convention in the near future. 

Let’s see if those justices who so often look to Europe for guidance will follow the Grand Chamber’s lead.


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