Politics July 24, 2014

Europe's High Court Defends Marriage

What it means for American liberals.

John Paul Shimek
SHARES
COMMENTS
First one is free... so are the rest. Daily.



By submitting above you agree the Aleteia privacy policy
Like Aleteia

John Paul Shimek
July 24, 2014
Dominic Doyle
When the U.S. Supreme Court handed down its landmark decision in Hobby Lobby v. Burwell, American liberalism suffered an immediate setback. Leftist judicial commentators and political pundits alike took to the airwaves and other media, criticizing the "unjust" ruling. Even Justice Ruth Bader Ginsburg registered an almost unprecedented level of dissatisfaction with the court's holding.

Talking heads on MSNBC and other networks contrasted the state of American liberalism with the perceived success of European progressivism, lamenting the American failure to move in Europe's direction.

Then, about one month later, the Grand Chamber of the European Court of Human Rights (ECHR) lowered the boom on European progressives. And, the wind was taken out of the sails of American liberalism.

The Grand Chamber had handed down its decision in the case of Hämäläinen v. Finland. Europe's high court of human rights had ruled in the favor of Finland, finding against Heli Hämäläinen, a male-to-female transsexual. An official statement of the ECHR detailed the facts of the case.

"The applicant, Heli Hämäläinen, is a Finnish national who was born in 1963 and lives in Helsinki. Ms Hämäläinen was born a male and married a woman in 1996. The couple had a child in 2002. In September 2009 Ms Hämäläinen underwent male-to-female gender reassignment surgery.

"Although she changed her first names in June 2006, she could not have her identity number changed to indicate her female gender in her official documents unless her wife consented to the marriage being turned into a civil partnership, which she refused to do, or unless the couple divorced. The couple preferred to remain married as a divorce would be against their religious convictions and they considered that a civil partnership did not provide the same security as marriage for them and their child. Ms Hämäläinen’s request to be registered as female at the local registry office was therefore refused.

"Ms Hämäläinen brought administrative proceedings before the national courts which, in May 2008 and February 2009, rejected her appeal against the refusal to register her as a female. The courts found in particular that legislation on confirming the gender of transsexuals in Finland did not intend to change the fact that only a man and a woman could currently marry under Finnish law. The Supreme Administrative Court refused her extraordinary appeal in August 2010.

"Ms Hämäläinen complained that making the full recognition of her new gender conditional on the transformation of her marriage into a civil partnership violated her rights under Article 8 (right to respect for private and family life), Article 12 (right to marry) and Article 14 (prohibition of discrimination)."

According to an official statement from the ECHR, the court found that "there had been no violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights, that there was no need to examine the case under Article 12 (right to marry) of the Convention; and, that there had been no violation of Article 14 (prohibition of discrimination) taken in conjunction with Articles 8 and 12."

This meant that the court ruling maintained that a contracting state of the European Union (EU) could refuse to acknowledge same-sex marriage without violating the Union's code of human rights. In fact, "The Court reiterated that the Convention did not impose an obligation on States to allow same-sex marriage." No EU member nation can be forced to accept same-sex marriage because the European Convention "enshrines the traditional concept of marriage as being between a man and a woman."

To be sure, the court's ruling contrasts with recent legal and political developments in the United States. Whereas American liberal news media oftentimes paints Europe as a much more progressive continent, here was its high court of human rights "lagging behind" American legal culture. 

Here in the U.S., liberals maintain that the crusade for same-sex marriage is the civil rights movement of the present age. Such a claim established itself as accepted dogma late last spring when reports emerged evidencing that Brendan Eich, the designated CEO of Mozilla, had made a one thousand dollar charitable donation to California's Proposition 8 initiatives. The revelation sparked outrage from pro-LGBT agitators, which led to Eich standing down from his new appointment.
Click here to view exclusive coverage of the latest news and commentary on the Synod

When the U.S. Supreme Court handed down its landmark decision in Hobby Lobby v. Burwell, American liberalism suffered an immediate setback. Leftist judicial commentators and political pundits alike took to the airwaves and other media, criticizing the "unjust" ruling. Even Justice Ruth Bader Ginsburg registered an almost unprecedented level of dissatisfaction with the court's holding.

Talking heads on MSNBC and other networks contrasted the state of American liberalism with the perceived success of European progressivism, lamenting the American failure to move in Europe's direction.

Then, about one month later, the Grand Chamber of the European Court of Human Rights (ECHR) lowered the boom on European progressives. And, the wind was taken out of the sails of American liberalism.

The Grand Chamber had handed down its decision in the case of Hämäläinen v. Finland. Europe's high court of human rights had ruled in the favor of Finland, finding against Heli Hämäläinen, a male-to-female transsexual. An official statement of the ECHR detailed the facts of the case.

"The applicant, Heli Hämäläinen, is a Finnish national who was born in 1963 and lives in Helsinki. Ms Hämäläinen was born a male and married a woman in 1996. The couple had a child in 2002. In September 2009 Ms Hämäläinen underwent male-to-female gender reassignment surgery.

"Although she changed her first names in June 2006, she could not have her identity number changed to indicate her female gender in her official documents unless her wife consented to the marriage being turned into a civil partnership, which she refused to do, or unless the couple divorced. The couple preferred to remain married as a divorce would be against their religious convictions and they considered that a civil partnership did not provide the same security as marriage for them and their child. Ms Hämäläinen’s request to be registered as female at the local registry office was therefore refused.

"Ms Hämäläinen brought administrative proceedings before the national courts which, in May 2008 and February 2009, rejected her appeal against the refusal to register her as a female. The courts found in particular that legislation on confirming the gender of transsexuals in Finland did not intend to change the fact that only a man and a woman could currently marry under Finnish law. The Supreme Administrative Court refused her extraordinary appeal in August 2010.

"Ms Hämäläinen complained that making the full recognition of her new gender conditional on the transformation of her marriage into a civil partnership violated her rights under Article 8 (right to respect for private and family life), Article 12 (right to marry) and Article 14 (prohibition of discrimination)."

According to an official statement from the ECHR, the court found that "there had been no violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights, that there was no need to examine the case under Article 12 (right to marry) of the Convention; and, that there had been no violation of Article 14 (prohibition of discrimination) taken in conjunction with Articles 8 and 12."

This meant that the court ruling maintained that a contracting state of the European Union (EU) could refuse to acknowledge same-sex marriage without violating the Union's code of human rights. In fact, "The Court reiterated that the Convention did not impose an obligation on States to allow same-sex marriage." No EU member nation can be forced to accept same-sex marriage because the European Convention "enshrines the traditional concept of marriage as being between a man and a woman."

To be sure, the court's ruling contrasts with recent legal and political developments in the United States. Whereas American liberal news media oftentimes paints Europe as a much more progressive continent, here was its high court of human rights "lagging behind" American legal culture. 

Here in the U.S., liberals maintain that the crusade for same-sex marriage is the civil rights movement of the present age. Such a claim established itself as accepted dogma late last spring when reports emerged evidencing that Brendan Eich, the designated CEO of Mozilla, had made a one thousand dollar charitable donation to California's Proposition 8 initiatives. The revelation sparked outrage from pro-LGBT agitators, which led to Eich standing down from his new appointment.


Op-Ed columns in the New York Times and other publications, suggested that retaining Eich would be akin to holding onto a CEO who did not uphold civil rights era legislation. In certain sectors, for example among the hosts of MSNBC, that point seemed to stick. But, it did not stick with the ECHR's judges. The court's decision noted the absence of a consensus on the legal question of same-sex marriage and gender issues. As the court's statement reads, "Indeed, the majority of the member States did not have any kind of legislation on gender."

Moreover, whereas U.S.-based agitators for same-sex marriage have pulled off their boldest accomplishments through the judicial usurpation of politics, the European high court has challenged that angle of approach. In its ruling, it declared that no member nation can be forced to accept same-sex marriage. At least at the European level, the question about the legalization of same-sex marriage must remain a democratic or political question. 

For this reason, the court handed questions about same-sex marriage and gender issues back to Finland. In the court's statement, it observed that, "In such absence of a consensus, and given the sensitive moral and ethical issues at stake, Finland had to be given a wide room for maneuver ('margin of appreciation'), both in deciding on legal recognition of the new gender of post-operative transsexuals and in the way to balance competing public and private [i.e., marriage] interests." 

But, what is perhaps most striking about the court's ruling is its revelation that "the differences between a marriage and a registered partnership did not involve an essential change in the applicant's legal situation." And, as a matter of fact, "those who converted to civil partnership continued to enjoy the same level of legal protection." The European court's claim flies in the face of pro-same-sex marriage legal arguments so often heard here in the U.S. Those arguments object that civil unions that are not converted to state-recognized marriages impose a second-class legal status on homosexuals. Europe's court disagreed.      

The court's ruling could have an impact on political and legal culture in America as much as in Europe. For some time, American liberals have been courting a jurisprudence that encourages cross-referencing U.S. with European and international law. In fact, comparative legal analysis has become an established currency at America's law schools.

Speaking at a symposium at the Moritz College of Law at Ohio State University, Justice Ginsburg commented on the importance of foreign law in her courtroom, asking “Why shouldn’t we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?” 

Ironically, liberal internationalists have often been in the same group as people agitating for the redefinition of marriage in U.S. law. The recent human rights court ruling therefore administers a serious blow to them.

What happened in American and European courts this month was nothing shy of a victory for pro-life, pro-family Catholics and other Christians. In both Hobby Lobby v. Burwell and Hämäläinen v. Finland, light began to shine on the far side of the proverbial tunnel. Let's hope these kinds of court room successes continue.


John Paul Shimek is a Roman Catholic theologian and a specialist on Vatican affairs. He maintains a blog entitled The Pilgrim Journalist.
Don't miss each day's best stories
Sign up for our free email newsletter



Comments
Don't miss each day's best stories
Sign up for our free email newsletter

; ;
Don't miss each day's best stories
Sign up for our free email newsletter



Become a Partner