ECHR: No Right to "Same-Sex" Marriage, But for How Long?

Guest post from Adj. Prof. and Director of the Center for Global Justice, Human Rights and the Rule of Law at Regent University School of Law, S. Ernie Walton:

On July 16, 2014, the European Court of Human Rights affirmed in Hämäläinen v. Finland that "same-sex" marriage is currently not a right protected under the European Convention on Human Rights. But for how long? To resolve the question of whether the Convention provided a right to "same-sex" marriage, the Court did what it most always does: survey the laws of member States and Council of Europe policy to determine whether a "European consensus" exists on the issue. Thus, rather than interpreting the text of the Convention based on the text's plain, historical meaning, the Court interprets the text based on the modern-day interpretations of other nations. How many nations and which nations is anyone's guess. In Hämäläinen, because only ten member States allowed "same-sex" marriage, the Court held that no European consensus currently existed, and therefore there was no violation of Article 8. 

Sure, this case is a victory for those opposed to "same-sex" marriage. But again, for how long will this victory last? If five more member States pass laws in favor of "same-sex" marriage, will this constitute a consensus, therefore magically transforming the meaning of Article 8 into requiring a member State to allow "same-sex" marriage? If not five, how about ten? What if nations outside Europe continue adopting "same-sex" marriage? Could the Court then find a consensus? It certainly has in the past. In Goodwin v. United Kingdom, the Court found a "right" in the Convention to have the government recognize a person's sex change based on an "international trend," and this despite the fact that there was no "common European approach" on the issue.[1] The fact is that European consensus is hardly a legal standard by which the Court can interpret the Convention. It is ambiguous, unpredictable, and provides judges an incredible amount of discretion. Indeed, one commentator notes that "[t]he ECHR's experience of over thirty years in hundreds of cases demonstrates that it is simply unable to articulate and apply a clear, predictable, and workable consensus standard."[2] Without a clear, predictable legal standard, the rule of law will be destroyed. And upholding the rule of law, not expanding the "rights" covered by the Convention, is what will preserve the work and influence of the European Court of Human Rights for years to come. For a comprehensive discussion on this issue, see my most recent article: Preserving the European Convention on Human Rights: Why the UK's Threat to Leave the Convention Could Save It.

-- S. Ernie Walton, Esq.
Administrative Director, Center for Global Justice, Human Rights, and the Rule of Law
Adjunct Faculty, Regent Law

[1] E.g., Goodwin v. United Kingdom, 35 E.H.R.R. 18, para. 85 (2002) ("The Court accordingly attaches less importance to the lack of evidence of a common European approach . . . than to the clear and uncontested evidence of a continuing international trend in favour not only of increased social acceptance of transsexuals but of legal recognition of the new sexual identity of post-operative transsexuals.") (emphasis added).


Adrian Peterson and Parenting

When Texas Child Protective Services charged Minnesota Vikings All-Pro Running Back Adrian Peterson with child abuse for disciplining his 4 year old son by hitting him with a tree branch they were protecting both the child, and the child's family for a healthy future.  To learn about how courts must view child discipline that can be abusive read about the best interests of the child standard and how it works at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1957143.
Minnesota Vikings Running Back Adrian Peterson Admires Pro Gamers
Peterson, however, would also be helped by a philosophy of parenting that includes marrying the mother of his child for the best protection for his children and their future. For more on this concept and how it protects children get the free download of "Rethinking Mom and Dad" at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462112.
Families are restored when parents do what is truly in the best interests of their children.


Justices Set Date to Review Marriage

Marriage may be coming again to the highest federal court in the country.  The National Law Journal is reporting that the United States Supreme Court on Wednesday placed the marriage cases from five states on the agenda for discussion at its private conference on Sept. 29. 

     "After a flurry of briefing in recent weeks-including petitions filed as recently as Tuesday-the court's action, reflected on its online docket, means the justices will soon be engaged and thinking about the historic constitutional issue of whether states can [expand marriage].

     The filings in cases from Indiana, Utah, Virginia, Wisconsin and Oklahoma will be distributed to the high court's nine justices for consideration at the so-called 'long conference' Sept. 29. That is when the[y] meet privately to discuss the hundreds of petitions that have piled up over the court's summer recess awaiting the court's decision whether or not to grant review.  The distribution does not mean, however, that the court will immediately announce its decision when the Sept. 29 conference ends."

Read the entire article online at http://www.nationallawjournal.com/id=1202669641470/Justices-Set-Date-to-Review-SameSex-Marriage-Petitions.


The High Court may hold the cases without acting, possibly to give them more time to examine the issues involved, or in anticipation of other filings on the same type of subject matter.  This is critical substance for the way American government works under principles of federalism.  To learn more about download the free article at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462093, detailing how state government regulation of family law is important to healthy federalism.


Marriage is important to family strength, making any High Court intervention worth watching.


Ray Rice and the Double Jeopardy to Janay Rice

When Ray Rice was rightfully charged with domestic assault, the law took a step to protect women in families, and rightfully penalize a perpetrator of an assault and battery. Domestic violence is never defensible, never appropriate, never deserved.  Family law is designed to protect vulnerable family members from these types of actions.  

When the NFL and the Baltimore Ravens, however, suspended and released Rice respectively, they will cause double jeopardy in terms of consequences to the victim of the assault, Janay Rice.  Let me explain -

Ray Rice Press Conference

First, reports make clear that "The release of the video has touched off a firestorm of activity. The Ravens have unceremoniously released Rice and the NFL has announced that in light of this "new evidence," Rice has been suspended from the league indefinitely," according to one report at http://www.redstate.com/2014/09/08/ray-rice-abortion-being-led-about-by-the-viscera/.  Janay shared her anguish regarding the video release, and her anger with the NFL and media outlets who will capitalize on her pain, as she stated to the Chicago Tribune at http://www.chicagotribune.com/sports/breaking/chi-ray-rice-video-20140909-story.html.

Secondly, there's more pain ahead for Janay.  When her husband, Ray Rice, lost his job, Janay Rice also lost her source of income. Criminal laws are designed to punish perpetrators and protect victims, but they often suffer much more than the general public realizes.  Indeed, Janay will be a double victim with her husband's employment loss.   As his dependent, she will suffer great loss of income, left to deal with double consequences of her husband's bad act.  While there may be no good alternative, and this is another consequence to Ray's actions, it is worth pointing out this collateral effect. 

When lawmakers create laws there's often a blind spot for the collateral effects of those legal consequences, and loss of employment in domestic violence cases is a classic one.  Another example of this is in the international law that was designed to protect children by affording them rights, but has actually not worked to protect children. Rather children are subject to greater victimization from adults around the globe than anytime in world history.  To learn more about that phenomenon, download the free article on the Social Science Research Network (SSRN) at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1962681. Indirect effects and consequences often harm the very person targeted for protection.  That's the case here with the Rice family.

Practical double jeopardy is never a good consequence of well thought out law, and it works to deconstruct any possible restoration a family might wish to pursue in the process of suffering the consequences of domestic assault.