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.

Most Popular

Law & the Courts

Obstruction Confusions

In his Lawfare critique of one of my several columns about the purported obstruction case against President Trump, Gabriel Schoenfeld loses me — as I suspect he will lose others — when he says of himself, “I do not think I am Trump-deranged.” Gabe graciously expresses fondness for me, and the feeling is ... Read More
Politics & Policy

Students’ Anti-Gun Views

Are children innocents or are they leaders? Are teenagers fully autonomous decision-makers, or are they lumps of mental clay, still being molded by unfolding brain development? The Left seems to have a particularly hard time deciding these days. Take, for example, the high-school students from Parkland, ... Read More
PC Culture

Kill Chic

We live in a society in which gratuitous violence is the trademark of video games, movies, and popular music. Kill this, shoot that in repugnant detail becomes a race to the visual and spoken bottom. We have gone from Sam Peckinpah’s realistic portrayal of violent death to a gory ritual of metal ripping ... Read More

Romney Is a Misfit for America

Mitt’s back. The former governor of Massachusetts and occasional native son of Michigan has a new persona: Mr. Utah. He’s going to bring Utah conservatism to the whole Republican party and to the country at large. Wholesome, efficient, industrious, faithful. “Utah has a lot to teach the politicians in ... Read More
Law & the Courts

What the Second Amendment Means Today

The horrifying school massacre in Parkland, Fla., has prompted another national debate about guns. Unfortunately, it seems that these conversations are never terribly constructive — they are too often dominated by screeching extremists on both sides of the aisle and armchair pundits who offer sweeping opinions ... Read More

Fire the FBI Chief

American government is supposed to look and sound like George Washington. What it actually looks and sounds like is Henry Hill from Goodfellas: bad suit, hand out, intoning the eternal mantra: “F*** you, pay me.” American government mostly works by interposition, standing between us, the free people at ... Read More
Film & TV

Black Panther’s Circle of Hype

The Marvel Cinematic Universe (MCU) first infantilizes its audience, then banalizes it, and, finally, controls it through marketing. This commercial strategy, geared toward adolescents of all ages, resembles the Democratic party’s political manipulation of black Americans, targeting that audience through its ... Read More