Gay instruments

Judicial pronouncements on LGBT rights are an excellent example of this phenomenon for some of my earlier thoughts on this, see here. Hodgesin 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.

And while there are many differences in the concrete legal tests being applied e. In particular, can such a restriction ever be justified by reference to public moralsor traditionor disapproval of a particular group or behaviour alone, absent any objectively identifiable, concrete individual or societal harm.

Instrument Gender Stratification in the Lesbian and Gay Band Association

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. Is a feeling or sentiment of yuckiness or sinfulness, turpitude, taboo, whatever enough to deny people gay instruments 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 if yuckiness alone does not suffice, what then of polygamy or consensual adult incest and the like and we do have cases like thator 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? In fact, when reading his opinion for gay instruments 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.

And then there are these nice passages obviously written to be quoted, like so:. 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.

And this must be the most supremely apoplectic footnote 22 ever written:. 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 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 Bowers v. Hardwick case, the US Supreme Court upheld precisely such criminalizations. That decision got overturned — in an opinion by Justice Kennedy — only inin Lawrence v. Texasmore than twenty years after Dudgeon.

It gay instruments inin Lustig -Prean and Beckett v. And it was inin Karner v. Austriathat 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. 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.

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 gay instruments para.

Thus, it cannot be said that there exists any European consensus on allowing same-sex marriages.