Over the Transatlantic Rainbow of EQUAL LOVE - LL.M. Thesis Amy Yrausquin-Roos by Juan David Yrausquin

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Written by Amy Yrausquin-Roos

Over the Transatlantic Rainbow of EQUAL LOVE A Com pa r ative P ersp ect ive of the US S up rem e C our t & the E ur opea n Cou rt of H uma n R ights on t he Fu nd amenta l R igh t to Ma rr y f or S a m e-S ex Co upl es

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Masterâ&#x20AC;&#x2122;s Thesis LL.M. Constitutional & Administrative Law Faculty of Law University of Aruba Author: Amylaine N. Yrausquin-Roos Studentnumber: 103255 Thesis Supervisor: Mw. mr. dr. Viola V.R. van den Boogaert

September 2015

Masterâ&#x20AC;&#x2122;s Thesis

Tesis di Master

Constitutional & Administrative Law

Ley Constitucional y Administrativo

University of Aruba

Universidad di Aruba

Faculty of Law

Facultad di Ley

Supervisor: mr. dr. Viola van den Boogaert

Studentnumber: 103255

Number di Studiante: 103255

Written by

Skibi pa

Amylaine N. Yrausquin-Roos

Sabana Liber

Noord, Aruba

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Over the Transatlantic Rainbow of EQUAL LOVE A Comparative Perspective of the US Supreme Court & the European Court of Human Rights on the Fundamental Right to Marry for Same-Sex Couples

September 2015 v

Civilization must be judged and prized, not by the amount of power it has developed, but by how much it has evolved and given expression to, by its laws and institutions, the love of humanity. Rabindranath Tagore

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ABSTRACT The US Supreme Court recently recognised a fundamental right to marry for same-sex couples; ruling that state bans on same-sex marriage are unconstitutional. A landmark American civil rights decision that will unquestionably impact other democracies reckoning with the issue of same-sex marriage. On the other side of the Atlantic, the European Court of Human Rights recently reiterated that the European Convention on Human Rights does not require member states under its jurisdiction to grant same-sex couples access to marriage.

This LL.M. thesis provides a comparative perspective on these two recent and important rulings of the highest court in the United States of America (SCOTUS) and the supranational court on matters of human rights in Council of Europe Member States (ECtHR).

The right to marry is an internationally recognised fundamental human right. Both legal systems recognise the right to marry as fundamental, yet differ in the way they interpret this right when it comes to same-sex couples.

By shedding a transatlantic comparative light on two judicial approaches to same-sex marriage â&#x20AC;&#x201C; with the purpose of sharpening understanding of essential human rights and constitutional concepts â&#x20AC;&#x201C; this thesis ultimately aspires to induce a local self-reflection on same-sex marriage equality in Aruba; calling for a civil discourse as the local path to tackle this issue autonomously. And more importantly, as an essential condition to ensure that respect and protection of human rights in general and legal recognition of same-sex marriage in particular are carried as shared inner Aruban values.

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Keywords Comparative Constitutional Law! ! !! United States Supreme Court! !

United States

Constitution!! European Court of Human Rights!!!European Convention!on Human Rights! Human Rights!!!Fundamental Rights!!!Right to Marry!! Prohibition of Discrimination !!!!Civil Rights!!!

Fourteenth Amendment!!!Due Process Clause!!!Equal Protection!Clause!!!LGBT!

Same-sex Marriage !!Judicial Review!!!Aruba !!!Civil Discourse ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! !

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Self-reflection!

Acknowledgements This thesis completes University of Aruba's Master's Programme in Law with a concentration on Constitutional and Administrative Law [Staats- en Bestuursrecht]. The title that comes with it, I owe to many people. Although words are hardly enough, I hope reading this thank you note puts a smile on those contributing faces, knowing they have made this world a better place.

First on my thank-you list – my thesis supervisor – Viola van Bogaert, for her knowledgeable, welcoming and flexible approach after just recently giving birth. I also feel lucky for the high level of research independence given in her supervision; safeguarding a potentionally new human right: the fundamental freedom of research.

A well-deserved thank-you goes to our Dean – Carlos Bollen – whose patience, conversations and continuous belief in my ability to finish the Master’s Programme helped push this dream forward. I am grateful for such an exceptionally thoughtful and encouraging Dean.

A warm thank-you to Leonie, Felicita and more recently, Angelina and Vidmara – our lovely librarians – who can get you a title faster than Google. Who are 'eveready' to go the extra mile to find that one missing piece of whatever it is you are looking for. All this, accompanied by a cheerful smile.

To my fellow law students (you know who you are), thank you for sharing your notes, your books and your hearts.

To my dear friends, thank you for your kindness and understanding for whenever I could not make it to our dates . . . okay, for never making it to our dates.

A very, very special thank you to everyone in my big and loving family; your continuous love and support was always felt. I cannot say thank you enough for being such an important part of my life. To my cousin Rebecca – my favorite lesbian luminary – thank you for your feedback and inspiration. To my uncle Eduardo, thank you for generously providing me with a private office: A much more effective workspace than a living room full of active kids. To everyone, thank you for all that you mean to me.

Most of all, I am particularly grateful to my 'terrific three', my wonderful parents, Edgard and Grace, and my amazing sister, Murielle, whose compassionate care, continuous support and whose beautiful hearts (and culinary generosity) helped shape me into the person I am today. Last but certainly not least, I owe an everlasting debt of gratitude to my husband, JuanDavid and my children, Nina, Gabriella and David, for being my daily source of warmth, joy and love. To my little ones in particular, thank you for keeping me grounded in what is truly important. To my husband – my love, my friend and more recently, my hero – thank you for always allowing me the freedom to be the primary caregiver to our kids, while pursuing a long-lost dream of finishing law school . . . at my own pace, exploring side paths by working with you and learning from you: someone I love and admire more every day ! But, most of all, thank you for being such a wonderful motivator, for making necessary arrangements (and ‘arepitas’) and for taking such good care of our children in the past months, so I could have uninterrupted reading and writing time. You truly played a leading role in this final academic pursuit, for which I am forever grateful. Complete focus and steely determination do not come natural to me. So adding these final words represents a personal triumph over my own shortcomings. But, above all, to be able to share this with the people I love, fills me up to the tip top !

Amy Yrausquin-Roos Sabana Liber/ Morningside Heights Fall 2015 x

CONTENTS

Acknowledgements

ACRONYMS

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CHAPTER 1 INTRODUCTION

1.1 BACKGROUND, PURPOSE & SCOPE

1.2 RESEARCH QUESTIONS

1.3 METHODOLOGY & MATERIAL

1.4 STRUCTURE

1.5 RELEVANCE FOR ARUBA

CHAPTER 2 THE AMERICAN LEGAL & HISTORICAL CONTEXT 2.1 THE UNITED STATES SUPREME COURT

14 14

2.1.1 Origin, Jurisdiction & Role

2.1.2 Judicial Review

2.2 THE UNITED STATES CONSTITUTION 2.2.1 The Fourteenth Amendment

18 18

CHAPTER 3 THE EUROPEAN LEGAL & HISTORICAL CONTEXT 3.1 THE EUROPEAN COURT OF HUMAN RIGHTS

23 23

3.1.1 Origin, Jurisdiction & Role

3.1.2 Judicial Review

3.2 THE EUROPEAN CONVENTION ON HUMAN RIGHTS

3.2.1 Article 8 ECHR: The Right to Respect for Private and Family Life

3.2.2 Article 12 ECHR: The Right to Marry

3.2.3 Article 14: Prohibition of Discrimination

CHAPTER 4 CASE COMPARISON ON SAME-SEX MARRIAGE

4.1 THE LANDMARK US SUPREME COURT CASE: OBERGEFELL V. HODGES

4.1.1 Background

4.1.2 The Facts of the Case

4.1.3 Majority Opinion

4.1.4 Dissenting Opinions

4.2. THE GROUND-BREAKING RULING OF THE ECtHR: OLIARI & OTHERS V. ITALY

4.2.1 Background

4.2.2 The Facts of the Case

4.2.3 The Courtâ&#x20AC;&#x2122;s Judgment

4.2.4 Concurring Opinion

CHAPTER 5 CONCLUSION

5.1 COMPARATIVE RESEARCH SUMMARY

5.2 RESEARCH ANSWERS

5.3 SELF-REFLECTION (on the local path to marriage equality)

5.4 A CALL FOR CIVIL DISCOURSE

JURISPRUDENCE

BIBLIOGRAPHY

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ACRONYMS CEDAW

Convention on the Elimination of all Forms of Discrimination against Women

CoE

Council of Europe

CRPD

Convention on the Rights of Persons with Disabilities

European Commission

ECHR

Convention for the Protection of Human Rights and Fundamental Freedoms

ECtHR

European Court of Human Rights

European Union

HRCtee

United Nations Human Rights Committee

ICCPR

International Covenant on Civil and Political Rights

LGBT

Lesbian, Gay, Bisexual, and Transsexual

PACE

Parliamentary Assembly of the Council of Europe

UDHR

Universal Declaration of Human Rights

United Nations

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CHAPTER 1

INTRODUCTION

1.1 BACKGROUND, PURPOSE & SCOPE It took me a while to decide and stick to a subject that was close enough to my heart, without being at risk of writing a political pamphlet. After researching countless topics related to constitutional law, some valuable suggestions by my thesis supervisor (‘look for a landmark case’) and my husband’s perceptive input (he brought up the hot-button news topic1), the subject suddenly revealed itself: the right to marry for same-sex couples. That consenting adult human beings should be free to legally marry the person they love2 regardless of sexual orientation, fills my own sense of justice and equality. Moreover, it nourishes a sense of common humanity3. There is also a widely held belief that challenging the ‘longstanding heteronormativity inscribed in laws that deny marriage to same-sex couples’ is considered to be ‘the engine to address and end all discrimination against non-heterosexuals and establish their formal equality with heterosexuals’4. Perhaps even more valuable than the economic and legal rights and 1

“Supreme Court to Decide Marriage Rights for Gay Couples Nationwide”, The New York Times. Consulted at: http://www.nytimes.com/2015/01/17/us/supreme-court-to-decide-whether-gays-nationwide-can-marry.html?_r=0 See also, “Supreme Court takes Landmark Case on Gay Marriage’, Bloomberg. Consulted at: http://www.bloomberg.com/politics/articles/2015-01-16/supreme-court-takes-landmark-case-on-gay-marriage 2 For those unacquainted with Jane Austin’s novels, it might come as a revelation that marrying for love is a relatively recent way of perceiving the civil institution of marriage. According to historian Stephanie Coontz, throughout centuries, marriage was not about the relationship between the man and the woman. She argues that marriage was a way of making alliances and expanding the family labor force. Coontz’ historical research reveals that marriage has been evolving for centuries, maintaining its relevance only by adjusting to changing social norms and values. It is namely in light of this evolution of the notion of the institution of marriage itself that same-sex marriage can best be understood. See generally Stephanie Coonz, Marriage, a History: How Love Conquered Marriage Penguin Books 2006; See also Thia Ghose, History of Marriage: 13 Surprising Facts (2013). Consulted at: http://m.livescience.com/37777history-of-marriage.html 3 Or as John Lewis, an American civil rights icon, so poetically tweeted right after the Supreme Court’s recent ruling on same-sex marriage: ‘Races don’t fall in love, genders don’t fall in love – people fall in love’. 4 Johnson 2011, 351. According to Johnson an increasing number of scholars recognise that law is central to the creation and maintenance of heteronormativity within contemporary societies. Johnson’s conception of heteronormativity is derived from what Berlant and Warner call ‘the institutions, structures of understanding, and practical orientations that make heterosexuality seem not only coherent, but also ‘privileged’. Johnson regards processes and doctrines of law as one of the most important mechanisms for ensuring this ‘privilege’ of heterosexuality and the ‘effortless superiority’ that it generally achieves in social life. (Johnson 2011, 350). See also Taylor V., Kimport K., Van Dyke N. and Andersen E. A. (2009) “Culture and mobilization: Tactical repertoires, same-sex weddings, and the impact on gay activism”, American Sociological Review, Vol. 74 (pp. 865–866); Harding, R. “Dogs are ‘‘registered’’, people shouldn’t be’: Legal consciousness and lesbian and gay rights”, Social and Legal Studies Vol. 15(4) (pp. 511–533), 2006. Consulted at: http://sls.sagepub.com/content/15/4/511.full.pdf+html; and Mary Bernstein, who argues that achieving same-sex marriage may open up even more space to expand LGBT-political agenda in pursuit of broad intersectional goals of structural change, social justice and the common good. Bernstein, Mary, “Same-Sex Marriage and the Future of the LGBT Movement: SWS Presidential Address”, Gender & Society, Vol. 20, No. 10, 2015, p. 14. Consulted at: http://gas.sagepub.com/content/early/2015/03/24/0891243215575287.full.pdf+html But see others, such as radical feminists and queer theorists, who argue that marriage, as historically and currently constructed, constitutes a normative harm that should be dismantled by society overall rather than embraced by gay

benefits that come with marriage equality are its psychological rewards: the right to marry and exercising the right to marry are associated with greater feelings of social inclusion among people in same-sex relationships5. As calls for marriage equality keep growing, the world remains divided on the issue of same-sex marriage; with an emerging number of countries moving towards full marriage equality6 vis-à-vis an opposing trend of countries amending their constitutions to entrench a constitutional ban on same-sex marriage7. Meanwhile, over half of the countries allowing same-sex marriage are in Europe. Nonetheless – more than a decade after the first European country gave legal recognition to same-sex marriage8 – the European Court of Human Rights (hereby ECtHR or ‘the Court’ or ‘the Strasbourg Court) does not interpret the Convention for the Protection of Human Rights and Fundamental Freedoms (henceforth ECHR or ‘the Convention’)9 as a general obligation for all member states of the Council of Europe (member states) to grant same-sex couples equal access to legal marriage10 11. Just recently, the ECtHR reiterated couples. Chai R. Feldblum, “A Progressive Moral Case for Same-Sex Marriage”, Vol. 7: 485, Temple Political and Civil Rights Law Review, 1998, 4-5. 5 For a comprehensive research on same-sex marriage and social inclusion see Badgett, M., “Social Inclusion and the Value of Marriage Equality in Massachusetts and the Netherlands”. Journal Of Social Issues, 2011, Vol. 67(2): (pp. 316-334). Available from: Academic Search Complete, Ipswich, MA. This is also why, in my opinion, solely providing legal statuses other than marriage (civil partnerships/civil unions), which intend to provide LGBT couples similar material benefits and legal rights as marriage, continue to highlite inequality; they maintain exclusion of LGBT-people from the institution of marriage, which in turn does not provide the psychological benefits associated with marriage. Alternatives are welcome for all couples (different-sex and same-sex) who do not wish to marry – and not merely as a separate legal framework for same-sex couples. 6 The recent ruling on same-sex marriage by the US Supreme Court, brings the number of countries that allow samesex couples to marry to twenty-three. It is interesting to note that in three of these countries, legal recognition of the right to marry for same-sex couples was achieved through the judicial process. 7 Eg in Europe, thirteen countries – all Eastern-European - have included an explicit definition of marriage as the union between a man and a woman in their constitutions (instead of the more commonly used constitutional provision guaranteeing the right to marry). In the United States, in reaction to the US Supreme Court’s recent ruling in favor of same-sex marriage, Republican presidential contender, Rick Santorum, is calling for a constitutional amendment to ban same-sex marriage. Consulted at: http://www.salon.com/2015/07/13/rick_santorum_proposes_a_constitutional_amendment_banning_same_sex_m arriage/ 8 An Act of Parliament amended the Dutch Civil Code’s article Article 30, Book 1, re-defining civil marriage to include couples of the same gender (Act opening civil marriage to same-sex couples). The article now reads: ‘A marriage can be contracted by two persons of different sex or of the same sex’. This legislation (‘Wet openstelling huwelijk’, 21 december 2001) can be consulted at: http://wetten.overheid.nl/BWBR0012099/geldigheidsdatum_19-02-2015 See also “Dutch Legislators Approve Full Marriage Rights for Gays”, The New York Times, Consulted at: http://www.nytimes.com/2000/09/13/world/dutch-legislators-approve-full-marriage-rights-for-gays.html 9 Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms, 4 november 1950, ETS No. 005. This Convention is commonly known as the European Convention on Human Rights. Throughout this thesis, ECHR and ‘the Convention’ will be used interchangeably to refer to the this Convention. 10 Hämäläinen v. Finland, no. 37359/09, §71 and §96, ECHR 2014, Schalk and Kopf v. Austria, no. 30141/04, § 101, ECHR 2010. 11 On March 12, 2015 the European Parliament (EP) adopted a resolution encouraging European Union (EU) institutions and member states to ‘further contribute to reflection on the recognition of same-sex marriage or samesex civil union as a political, social and human and civil rights issue. European Parliament resolution of 12 March 2015 on the Annual Report on Human Rights and Democracy in the World 2013 and the European Union’s policy on the matter (2014/2216(INI)), point 162. Consulted at:

this standpoint in a judgment issued in the case Oliari and Others v. Italy12, despite its observation that there is a gradual evolution of member states on the matter; the Court noted that eleven CoE states now recognise same-sex marriage13. Three weeks before the Oliari ruling and on the other side of the Atlantic, the Supreme Court of the United States (henceforth Supreme Court) ruled on a landmark case, Obergefell v. Hodges14, that put the ‘Land of the Free’ at the forefront of LGBT15-rights. The Supreme Court interpreted the Fourteenth Amendment of the US Constitution to require all fifty States to allow same-sex couples to marry, recognising a constitutional right to marry for same-sex couples in the United States (the ruling also required States to recognise valid same-sex marriages performed out-of-State). The judgment, which came during ‘Pride Month’ on June 26, 201516, has important implications in the wider context of human rights protection and will unquestionably impact other democracies reckoning with the issue of same-sex marriage17. In light of this latest American spurt in jurisprudential progressiveness, which brought about a national legal acceptance of same-sex marriage in the United States of America, the question that rises is how come the ECtHR – well-known for its progressive protection of human rights – appears to have remained rather hesitant in its approach to recognition of a human right to marry for same-sex couples. Inspite of finding equal marriage to be consistent with the ECHR, the ECtHR upholds that the question whether to grant same-sex couples access to marriage is a matter left to regulation by the national law of each individual member state18. It is this compelling difference in approach to a common human rights issue that the following research intends to gain a little more insight into, by providing a comparative perspective on a ‘leading edge’ http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P8-TA-2015-0076&language=EN&ring=A82015-0023 (This is an interesting resolution, because developments within the EU and CoE are interconnected). It is also interesting to point out that more recently, the Congress of Local and Regional Authorities of the Council of Europe (CoE) adopted a resolution emphasising the important role of politicians on the local level, as powerful driving forces to promote the respect for human rights and ensure that this is not merely a legal obligation, but also a shared value. See RESOLUTION 380 (2015). This resolution was debated and adopted by the Congress on 25 March 2015, 2nd sitting and can be consulted at: https://wcd.coe.int/ViewDoc.jsp?id=2286851&Site=COE&BackColorInternet=C3C3C3&BackColorIntranet=CA CC9A&BackColorLogged=EFEA9C. CG/2015(28)9FINAL, Explanatory Memorandum), rapporteur: Yoomi Renström, Sweden (R, SOC). 12 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, ECHR 2015. 13 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, §192, ECHR 2015. 14 United States Supreme Court, Judgment of June 26, 2015, Obergefell v. Hodges, 576 U.S. ___ (2015). James Obergefell, et al., Petitioners v Richard Hodges, Director, Ohio Department of Health, et al. This case was consolidated with three other cases regarding same sex marriage: Tanco v. Haslam (Tennessee), DeBoer v. Snyder (Michigan), Bourke v. Beshear (Kentucky). 15 Lesbian, Gay, Bisexual, and Transsexual. 16 United States Supreme Court, Judgment of June 26, 2015, Obergefell v. Hodges, 576 U.S. ___ (2015). This opinion can be consulted at: http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf 17 Eg. The ECtHR referred to the ruling in the Oliari case (§65). 18 Schalk and Kopf v. Austria, No. 30141/04, § 61, ECHR 2010.

Supreme Court ruling and a ‘ground-breaking’ decision of the ECtHR. This thesis ultimately aspires to induce a local self-reflection on same-sex marriage by improving understanding of relevant and essential concepts in the protection of human rights. Same-sex marriage is a complex and politically controversial topic that can be explored from numerous perspectives. The focal point of this research will be centered around the judicial route to access to legal marriage by same-sex couples. The term ‘same-sex marriage’, popularly called gay marriage, refers in this thesis to marriage between two persons of the same biological sex or sexual orientation19. The definition used for marriage is derived from Waaldijk, who articulates marriage as ‘a traditional legal form of partnership that is created by a formal act of registration and results in a great number of rights and obligations in private and public law’20. The terms marriage and legal marriage will be used interchangeably21. The right to marry is an internationally recognised fundamental human right. It is enshrined in a number of international human rights treaties22 and articulated in a number of national constitutions around the world23. Article 23(2) of the International Covenant on Civil and Political Rights (ICCPR) states that ‘[t]he right of men and women of marriageable age to marry and to found a family shall be recognized’. Although the United Nations Human Rights Committee (HRCtee) does not interpret Article 2324 as applying to same-sex couples25 – it concluded well over a decade ago in

19 Sexual orientation is also referred to as gender identity. ‘An individual may develop a gender identity different from the one initially assigned on the basis of anatomical criteria’, taken from Eckert, Penelope and McConnellGinet, Sally, Language and Gender. Second Edition. Cambridge and New York: Cambridge University Press, 4; Consulted at: http://web.stanford.edu/~eckert/PDF/Chap1.pdf 20 P. 105, Waaldijk, Kees, Others May Follow: The Introduction of Marriage, Quasi-Marriage, and Semi-Marriage for Same-Sex Couples in European Countries (2004). Judicial Studies Institute Journal, Vol. 5, pp. 104-127, Dublin, 2005. Consulted at SSRN: http://ssrn.com/abstract=1428827 21 Waaldijk’s definition of marriage ties in with the term ‘legal marriage’ as proposed by Wintemute, to distinguish marriage with legal consequences from marriage with religious consequences. A ‘religious marriage’ is a marriage with religious, but not legal consequences. A ’civil marriage’ is a marriage performed by a state official with legal, but not religious consequences (Wintemute 2006). Wintemute notes that in some European countries, like the Netherlands, Belgium and France, ‘civil marriage’ and ‘legal marriage’ are synonymous, since a religious marriage can never be a legal marriage (have legal consequences). This is not true in the United States and in the United Kingdom for instance, where a marriage performed by a church official can be a legal marriage and a religious marriage at the same time. P. 527, Robert Wintemute, Same-Sex Marriage: When Will It Reach Utah?, 20 BYU J. Pub. L. 527 (2006) Available at: http://digitalcommons.law.byu.edu/jpl/vol20/iss2/12 22 See Article 23 (2) ICCPR, Article 16 (1a) CEDAW, Article 23 (1a) CRPD; It is also stated in Article 16 (1) UDHR. 23 On the online platform ‘Constitute’, developed by the Comparative Constitutions Project at the University of Texas, a quick search with the words ‘right to marry’ results in a total of 19 constitutions with their corresponding provisions recognising a fundamental right to marry. Consulted: www.constituteproject.org 24 Article 23 ICCPR, regards the ‘family’ as the ‘natural and fundamental group unit of society’. 25 Gerber et al. note that ‘the rationale behind the decision has been criticised for its brevity and its inconsistency with both the doctrine of interpretation established by the Vienna Convention on the Law of Treaties. Gerber, Paula and Tay, Kristine and Sifris, Adiva, “Marriage: A Human Right for All ?“, 36(4) Sydney Law Review 643, 2014. Consulted at SSRN: http://ssrn.com/abstract=2536335 645.

Joslin v. New Zealand26 that under international law States are not required to allow same-sex couples to marry27 – however, current legal scholarship has widely accepted that international human rights law should be interpreted to include a right to marry for same-sex couples28. It is with these aspects in mind: i. the remaining controversy surrounding same-sex marriage and ii. a lack of international consensus on the existence of a human right to marry that includes same-sex couples, that this thesis will look at how two high courts on two different continents adjudicate similar human rights claims presented by same-sex couples to gain access to the legal institution of marriage. Without migrating to a philosophical discussion on a theory of human rights, it is necessary to identify a conceptual discernment concerning the terms ‘human rights’ and ‘fundamental rights’. In human rights terminology, the relevant provisions being reviewed by the courts considered in this thesis pertain to civil and political rights, also known as ‘first generation rights’29 or ‘blue rights’30. The terms ‘human rights’ and ‘fundamental rights’ are considered as functionally equivalent for the purposes of comparison and will be used interchangeably. Thus, human rights cq. fundamental rights will refer to the civil rights protected by the ECHR, when examining the European perspective, while human rights cq. fundamental rights will refer to 26

Human Rights Committee, Joslin et al. v New Zealand, Communication No. 902/1999, UN Doc CCPR/C/75/D/902/1999 (2002) §8.2. 27 According to the HRCtee failure to provide for same-sex marriage did not constitute discrimination. Human Rights Committee, Joslin et al. v New Zealand, Communication No. 902/1999, UN Doc CCPR/C/75/D/902/1999 (2002), §8.3. But see Conte, A, & Burchill, R 2009, Defining Civil And Political Rights : The Jurisprudence Of The United Nations Human Rights Committee, Farnham, England: Ashgate Publishing Ltd, eBook Collection (EBSCOhost). Noting that recent developments make the views expressed by the HRCtee appear outdated. Be that as it may, the vast majority of countries define marriage solely as a union between a man and a woman: Of the 193 member states of the UN, 23 allow it. 28 See e.g., Gerber, Paula and Tay, Kristine and Sifris, Adiva, Marriage: A Human Right for All? (December 10, 2014). 2014 36(4) Sydney Law Review 643. Consulted at SSRN: http://ssrn.com/abstract=2536335; Vincent J. Samar, Privacy and Same-Sex Marriage: The Case for Treating Same-Sex Marriage as a Human Right, 68 Mont. L. Rev. 335 (2007). Consulted at: http://scholarship.law.umt.edu/mlr/vol68/iss2/7; Sonia B. Gree, Currency Of Love: Customary International Law And The Battle For Same-Sex Marriage In The United States, 14 U. Pa. J.L. & Soc. Change 53 (2011) (arguing that same sex marriage is customary international law). Consulted at: http://scholarship.law.upenn.edu/jlasc/vol14/iss1/2; Aaron Xavier Fellmeth, State Regulation of Sexuality in International Human Rights Law and Theory, 50 Wm. & Mary L. Rev. 797 (2008), Consulted at: http://scholarship.law.wm.edu/wmlr/vol50/iss3/3 See also Giedre Zukaite, arguing a decade ago that prohibitions on same-sex marriage violate the right of equal treatment. G. Zukaite, Does the Prohibition of Same-Sex Marriages violate Fundamental Human Rights and Freedoms ?, International Journal of Baltic Law (International Journal of Baltic Law), issue: 4 / 2005, pages: 1-25. This article can be downloaded at: http://www.ceeol.com/aspx/issuedetails.aspx?issueid=056f864a-fd3f-463c-9ea0608e4f32f01a&articleId=b2768dcf-3d12-4386-8d79-b23e92c95156 29 From Vasak’s typology, categorising human rights in ‘three generations’, which essentially follows the historical development of human rights. Vasak, K., ‘A 30-Year Struggle: The Sustained Efforts to Give Force of Law to the Universal Declaration of Human Rights’, UNESCO Courier, 1977. 30 For more on the origin and development of the generations of human rights, see Adrian Vasile Cornescu, The Generations of Human’s Rights, Dny práva – 2009 – Days of Law: the Conference Proceedings, 1. edition. Brno : Masaryk University, 2009. Available at: http://www.law.muni.cz/sborniky/dny_prava_2009/files/prispevky/tvorba_prava/Cornescu_Adrian_Vasile.pdf

constitutionally entrenched human rights when describing the American situation. For the sake of comparative legal clarity it is also important to provide an additional explanation of the conceptual difference between the terminologies ‘human rights’ and ‘fundamental rights’31. ‘Fundamental rights’ in American constitutional doctrine are considered as ‘a group of rights that have been recognized by the Supreme Court as requiring a high degree of protection from government encroachment’32. These rights are either specifically articulated in the Constitution or have been established by the Supreme Court (as implicitly granted by the Constitution). Chemerinksy notes that almost all of these rights are not mentioned in the text of the Constitution33. The right to marry is an example of such a fundamental right, that is not explicitly listed in the US Constitution. A fundamental right to marry34 was developed and adopted in the jurisprudence of the Supreme Court35. The study concentrates on the two most recent and significant rulings of the US Supreme Court and the ECtHR; the four dissenting opinions to the American ruling and the concurring opinion to the European ruling will solely be given a brief mention. Additionally, this thesis will only touch upon other cases if considered necessary for clarification. On the whole, this thesis does not pretend to offer a meticulous comparative analysis of a much-debated issue in the United States and Europe. Its more humble intention is, as briefly pointed out above, to enhance the capacity for selfreflection by shedding a comparative light that might refresh our own Caribbean perspective on the legal recognition of the fundamental right to marry for same-sex couples in Aruba (this will be elaborated upon in paragraphs 1.3 and 1.5, as the main purpose of this thesis is closely linked to the selected methodology and relevance of the topic for Aruba).

Šarčević notes that most legal concepts are the product of a national legal system. Therefore, the terminology of different systems is ‘conceptually incongruent’. Šarčević 1997: 232. 32 Consulted at: https://www.law.cornell.edu/wex/fundamental_right 33 Chemerinksy 2015, 812. 34 For a better understanding of the content and the scope of the American constitutional right to marry see Cass R, Sunstein, “The Right to Marry”. Cardozo Law Review, Vol. 26, Issue 5 (pp. 2081-2120), 2005. Available at: http://www2.law.columbia.edu/faculty_franke/Gay_Marriage/Sunstein)Right_To_Marry_edited.pdf 35 Meister v. Moore, 96 U.S. 76, 78-79, 81 (1877), Meyer v. Nebraska, 262 U.S. 390, 399 (1923), Skinner v. Oklahoma, 316 U.S. 535, 541 (1942), Loving v. Virginia, 388 U.S. 1(1967), Zablocki v. Redhail, 434 U.S. 374 (1978), Justice Douglas’ widely quoted opinion in Griswold v. Connecticut notes in this regard that ‘[m]arriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths, a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions’35. One of the most cited passages of Supreme Court case law regarding marriage, comes from the landmark case Loving v. Virginia, wherin it ruled that ‘[t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men . . . Marriage is one of the basic civil rights of man, fundamental to our very existence and survival’. Loving v. Virginia, 388 U.S. 1(1967).

1.2 RESEARCH QUESTIONS In order to guide this comparative legal pursuit to reach a deeper understanding36 of the application of human rights norms when it comes to same-sex marriage, the three main questions being pondered in this thesis are as follows:

1. What are the main similarities and differences in the two judicial approaches when dealing with the issue of same-sex marriage ? 2. Why is Europe seemingly lagging behind, while the US has moved towards full marriage equality ? 3. What can Aruba learn from these two different paths ?

1.3 METHODOLOGY & MATERIAL The issue of same-sex marriage as undertaken in this thesis relates to human rights law and constitutional law and accordingly this thesis applies a comparative constitutional method of analysis37. Such an approach facilitates the framing of similarities and differences between distinctive judicial ways of dealing with a similar matter in two different legal systems; in this particular case, the judicial bodies being compared are the United States Supreme Court and the European Court of Human Rights, while the similar matter being examined is the adjudication of human rights claims involving access to marriage by same-sex couples. As noted by Saunders ‘. . . a comparison of human rights protection clearly calls for a functional approach’38, which also happens to be the dominant method of analysis in comparative constitutional law39. The two courts being compared, the US Supreme Court and the ECtHR, are considered to be

Within the limits of a master’s thesis. In the spirit of Supreme Court Justice Ruth Bader Ginsburg who asserts that ‘[…] comparative analysis emphatically is relevant to the task of interpreting constitutions and enforcing human rights’. Ginsburg, Ruth Bader, “Affirmative Action: An International Human Rights Dialogue”, 21 Cardozo Law Review 253, 260 (1999) (51st Cardozo Memorial Lecture). Consulted at: http://www.brookings.edu/research/articles/2000/12/winter-politicsginsburg 38 Saunders, Cheryl, Towards a Global Constitutional Gene Pool, Keynote Speech, 13. Consulted at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1554158 See in this regard, how functional comparative law can be helpful ‘in preparing the ground for critique’ and how ‘[f]unctionalist comparison can open our eyes to alternative solutions’, eventhough ‘it cannot tell us whether those alternative solutions are better or not, Michaels, Ralf, The Functional Method of Comparative Law. In Rosenfeld, M., & Sajó, A. (Eds.), The Oxford Handbook of Comparative Constitutional Law, Oxford University Press, Oxford, 2013 (pp. 379-380). 39 Rosenfeld & Sajo 2013, 62. 37

functionally equivalent40, as both judicial institutions serve as high courts deciding on human rights in their respective jurisdictions41. The functional approach taken in this thesis goes beyond ‘law in books’ by giving a comparative view of ‘law in action’: looking at the actual application of human rights norms in two different legal systems. It is this effective judicial response to a common practical issue that modern comparative law designates as the ‘tertium comparationis’42. Furthermore, and in the vision of a ‘flexible understanding of methodology of comparative study of law’, as advocated by Husa43, the functional approach taken in this thesis is historically contextualized to allow for a deeper understanding of the ‘naked rules’ being applied by the two courts. The likewise requirement for proper comparison, namely that the legal systems being compared have some sort of common ideological basis44, is also fulfilled as the 47 CoE Member States and the United States share fundamental values such as democracy, rule of law and respect for human rights45. An additional consideration making these two particular courts suitable (and appealing) for comparison has to do with both courts being internationally authoritative judicial institutions. Supreme courts around the world are known to look to decisions of these two courts for guidance and inspiration46: the Supreme Court as one of the world’s oldest constitutional courts47, the ECtHR as the world’s most important and longest standing human rights court48. 40

As for the relevant provisions involved in the adjudication by these two different courts, the articles of the ECHRM are considered as functionally equivalent to the constitutional articles of the United States Constitution. See Rosenfeld & Sajó, who assert that eventhough such conventions ‘are not formally or technically constitutions, their provisions - particularly as interpreted by courts such as the ECtHR - are the functional equivalent of constitutional norms’ (Rosenfeld & Sajó 2013, 2). See also Häberle, who refers to convenants of human rights as "partial constitutions" par exellence (p.68) and who applies a broad approach by using the term “regional constitutional court” to refer to the ECtHR (p. 67). Consulted at: http://www.ecln.net/elements/conferences/book_berlin/haeberle.pdf 41 The Supreme Court is the highest court in the judicial hierarchy of the United States. The ECtHR is the supranational court that administers the ECHR ratified by the 47 CoE member states. 42 Hyland, Richard, ‘Gifts: A Study in Comparative Law’, Oxford University Press, Oxford, 2009, 65. Consulted at: http://www.pierre-legrand.com/hyland.pdf 43 Jaakko Husa, ‘About the Methodology of Comparative Law – Some Comments Concerning the Wonderland... ‘, Maastricht Faculty of Law Working Paper 2007/5. 44 Hoffmann-Holland, K., Ethics and Human Rights in a Globalized World (Mohr Siebeck, Tübingen, Germany 2009) 28. 45 ‘Democracy, freedom and human rights’, EU–US summit declaration, Washington DC, 20 June 2005. 46 It is interesting to point out that the US Supreme Court’s international influence is showing signs of decline in favor of the ECtHR. See Adam Liptak, “U.S. Court, a Longtime Beacon, Is Now Guiding Fewer Nations”, The New York Times, Sept. 18, 2008. “A diminishing number of foreign courts seem to pay attention to the writings of American justices”. Indicating that “these days, foreign courts in developed democracies often cite the rulings of the ECtHR in cases concerning equality, liberty and prohibitions against cruel treatment”. Consulted at: http://www.nytimes.com/2008/09/18/us/18legal.html?pagewanted=all&_r=0 47 The Supreme Court was created by authority of the Judiciary Act of September 24, 1789 (1 Stat. 73). It was organised on February 2, 1790. Consulted at: http://www.supremecourt.gov/about/briefoverview.aspx. See also Slaughter, A., “A Global Community of Courts”, 44 Harvard International Law Journal 191 (2003). p. 196. Consulted at: http://www.princeton.edu/~slaughtr/Articles/GlobalCourts.pdf 48 According to Bantekas & Oette, ‘the ECtHR has made a major and influential contribution to the development of international human rights law’, I. Bantekas & L. Oette, International Human Rights Law and Practice (1st,

The type of comparative inquiry applied is directed towards self-reflection49. As Professor Hirschl so rightly asserts: ‘By referring to constitutional jurisprudence and practices of other presumably similarly situated polities, we might be able to gain better understanding of our own set of constitutional values and structures and enrich, and ultimately advance, a more cosmopolitan, universalist view of our own constitutional discourse’50. Or as Eberle notes on the ‘real aim of comparative law’, which is ‘to offer insight and perspective so that we are better equipped to reflect critically about ourselves and our own legal culture’51. Hence, the type of comparative quest52 embarked upon is closely connected to the central aim of this thesis: enhancement of the capacity for self-reflection on the Aruban approach to same-sex marriage. Paragraph 1.5 touches on a final elaboration in connection with this aspect of self-reflection. The comparative analysis in this thesis is completely based on literature research. The sources of research draw upon a variety of documents. From academic literature related to the ECHR and the ECtHR, the US Constitution and the US Supreme Court to opinions and relevant decisions of both courts, as well as dissenting opinions and commentaries on these cases. Among the list of other legal literature consulted are a variety of articles on comparative law methodology, human rights, coupled with European and American journal articles addressing the issue of same-sex marriage, judicial review and historical background articles, all of which were consulted digitally through the University of Aruba’s databases, free online repositories of other renowned academic institutions and valuable research portals such as SSRN (Social Science Research Network). The style guideline is in accordance with the English Style Guide. A handbook for authors and translators in the European Commission53. Literal quotations from American sources and all cases are cited in their original form54.

Cambridge Press, Cambridge, United States 2013) 227; Eric Metcalfe remarks that the ECtHR is arguably the most influential of any international court, especially when measured in terms of its impact on the daily lives of nearly a sixth of the world’s population, The Conscience of Europe: 50 Years of the European Court of Human Rights, 16. Consulted at: http://www.echr.coe.int/Documents/Anni_Book_Chapter01_ENG.pdf 49 Hirschl, Ran, The Question of Case Selection in Comparative Constitutional Law. American Journal of Comparative Law, Vol. 53, No. 1, pp. 125-155, Winter 2005; U Toronto, Legal Studies Research Paper No. 901700. Consulted at: http://ssrn.com/abstract=901700 50 Ibid. See also: Jackson, Vicki C., Methodological Challenges in Comparative Constitutional Law (December 1, 2010). Penn State International Law Review, Vol. 28, p. 319, 2010; Georgetown Public Law Research Paper No. 11-11. Consulted at: http://ssrn.com/abstract=1739756 51 Eberle 2009, 472. 52 For more on the value of comparative law for legal education, see Husa, Jaakko, ‘Turning the Curriculum Upside Down: Comparative Law as an Educational Tool for Constructing Pluralistic Legal Mind’ (2009). Comparative Research in Law & Political Economy. Research Paper No. 35/2009. Consulted at: http://digitalcommons.osgoode.yorku.ca/clpe/147 53 This style guide can be constulted at: http://ec.europa.eu/translation/english/guidelines/documents/styleguide_english_dgt_en.pdf 54 Quotations from American sources are in (their original) American English.

1.4 STRUCTURE This thesis is structured in five chapters. Chapters two and three lay the foundation for constitutional comparison by respectively giving a brief description of the legal and historical context within which each court excercises its judicial function. This groundwork includes an overview of the origin, jurisdiction and role of each court, with a particular focus on the nature and scope of the function they are called upon to perform. It also identifies and describes the relevant human rights provisions in each jurisdiction. Chapter four presents the case comparison which examines the landmark US Supreme Court ruling on same-sex marriage in the case Obergefell v. Hodges55 and the ground-breaking decision of the ECtHR in the case of Oliari and Others v. Italy56. Chapter five concludes with a brief summary and answers to the three research questions. It also provides a self-reflection on the local approach to same-sex marriage based on the acquired comparative insights, and closes with a call for the creation and deepening of a civil discourse on same-sex marriage in Aruba. 1.5 RELEVANCE FOR ARUBA The comparative research undertaken in this thesis is relevant for Aruba in two ways. The first one is self-evident and relates to the ECtHR and the ECHR. The Kingdom of The Netherlands (hereinafter: the Kingdom) is one of the original signatories to the ECHR, signed on November 4, 195057. Aruba is legally bound by the decisions of the ECtHR, as an autonomous country within the Kingdom. The ECHR entered into force for Aruba on January 1, 198658. The impact of the ECHR on law and jurisprudence in the Kingdom has been extraordinary, particularly as a result of the Kingdom’s monist constitutional system, which makes it possible for Aruban Judges to directly apply the ECHR and for Aruban citizens to directly invoke the ECHR59. Most importantly, the ECHR always takes precedence over national law, even over Aruba’s own Constitution60. It is the ‘supreme law of the land’. The interpretation of the ECHR by

Supra note 14. Supra note 13. 57 http://wetten.overheid.nl/BWBV0001000/geldigheidsdatum_05-03-2015 58 See also https://verdragenbank.overheid.nl/nl/Treaty/Details/005132.html. http://conventions.coe.int/Treaty/Commun/ListeDeclarations.asp?NT=005&CM=8&DF=08/07/2015&CL=ENG &VL=1 59 This monist constitutional order is based on unwritten constitutional law (Grenstraktaat Aken, HR 3 March 1919, NJ 1919, 317). On a more specific note, the Kingdom’s monism is considered to be a moderate one, as article 93 of the Constitution of the Kingdom limits the automatic applicability of international standards to those provisions that are ‘binding on all persons’ [een ieder verbindende bepaligen]. 60 Article 94 of the Constitution of the Kingdom (known in Dutch as the ‘voorrangsregel’). This article states that Statutory regulations shall not be applied if application is considered inconsistent with provisions of treaties that are binding on all persons or with decisions of international organizations. 56

the ECtHR thus plays a crucial role in safeguarding human rights and fundamental freedoms in Aruba. The second and perhaps more idealistic relevance of this comparative pursuit is connected with the prevailing state of our local LGBT-rights landscape61. Professor Johnson considers human rights discourse one of the most effective instruments for mobilising a range of moral and political claims that contest widespread social and legal discrimination experienced by sexual minorities62. Johnson notes that despite recent and high-profile recognition of human rights for gays and lesbians, LGBT-human rights remain marginal to the political and social policy of many states63. This applies equally to Aruba, and the issue of same-sex marriage clearly illustrates this point. The dominant legal and political point of view in Aruba is that marriage is a union between a man and a woman64. The Government of Aruba previously came into direct conflict with the Dutch government regarding the Dutch government’s expressed desire for legal recognition of same-sex marriage in the Caribbean parts of the Kingdom65, arguing that this was not in line with local culture. Presently, the Government of Aruba (composed of the largest political party on the island) adheres to the same standpoint66. Local politicians (with a few exceptions) are not taking a stand in support of same-sex marriage, perceiving this as unpopular, which puts them at risk of losing votes. Aruba’s Parliament is in the process of adopting new regulations and pending adaptations to

It is interesting to note that the Dutch Kingdom still remains divided on the issue of same-sex marriage. Regulation of marriage is considered an autonomos, internal affair (as it pertains to family law). In 2005 a lesbian couple, legally married in the European part of the Netherlands was denied to register as a married couple at the Civil Registry Office of Aruba. The Civil Registry Office of Aruba was later forced to recognise this same-sex civil marriage after a Dutch Supreme Court ruling - grounded on Article 40 of the Charter for the Kingdom of the Netherlands [Statuut voor het Koninkrijk der Nederlanden] - in the case Oduber Lamers/Aruba, HR 13 april 2007, LJN: AZ 6095 / JOL 2007, 50 (Oduber /Lamers). Article 40 of the Charter provides for the recognition and enforcement of judgments and authentic deeds within the Dutch Kingdom. Aruba now recognises same-sex marriages celebrated in other parts of the Kingdom of the Netherlands. For a discerning overview of this case dip into: V. Polak, ‘Status en Statuut: het Nederlandse opengestelde huwelijk op Aruba - Never the twain shall meet?’ (noot onder HR 13 april 2007), AA 2007, p. 696- 701. In 2009 the Dutch Parliament approved a motion instructing the Dutch Government to advance the local homo-emancipation policy in the Caribbean islands of the Kingdom, including Aruba. (Motion of Members of Parliament Van Gent and Remkes; Motie Van Gent & Remkes, Tweede Kamer, vergaderjaar 2009-2010, 31954, nr.28. Consulted at: https://zoek.officielebekendmakingen.nl/dossier/31954/h-tk20092010-86-7284?resultIndex=28&sorttype=1&sortorder=4. In light of ending discrimination in the Kingdom by actively promoting equal rights for homosexuals. (Wetgevingsoverleg Vaste Commissie met Staatssecretaris BijleveldSchouten van Binnenlandse Zaken en Koninkrijksrelaties, 15 en 18 januari, 2010). Consulted at: https://www.eerstekamer.nl/behandeling/20100304/voortzetting_behandeling/document3/f=/vjlae2uq8yha.pdf 62 Johnson 2013, 2. 63 Johnson 2013, 3. 64 In its 2011 Annual Report, The Aruban Council of State pointed out that there has never been an empirical study on the views of the Aruban population regarding same-sex marriage. Raad van Advies Aruba (RvA) 2011, Jaarverslag 2011. Oranjestad: Raad van Advies Aruba. 65 P. 108, Staat van Bestuur, WODC. Consulted at: http://wodc.nl/onderzoeksdatabase/onderzoekOnaarOdeOstaatOvanObestuurOvanOarubaO enOrechtshandhavingOinOhetObijzonder.aspx. 66 Caribisch Netwerk, Arubaanse regering wil geen homohuwelijk, 13 juni 2013. Consulted at: http://caribischnetwerk.ntr.nl/2013/06/13/arubaanse-regering-wil-geen-homohuwelijk/

Book 1 of the Civil Code67, opening up the possibility of amending the legal definition of marriage to include same-sex couples. The current Bill presented to Parliament does not re-define the relevant article68 on marriage to include persons of the same sex69. What is more, the Explanatory Memorandum to this Bill reinforces the current article’s heteronormativity by including a new explicit remark about the exceptions provided for by the third paragraph of this article70, which makes it possible – based on compelling reasons – for the Minister in charge of justice to grant dispensation from the requirements mentioned in paragraph 171. The new commentary completely closes the door for any forwardlooking, innovative interpretation that a dispensation from the requirement that couples be of the opposite sex could also be granted. While the gay rights movement in Aruba has made some effort to put same-sex marriage on the agenda72, and with the exception of a joint resolution freshly issued by Dutch-Caribbean LGBTI organisations past July 18th – urging all involved to grant full access to the human right to marry to same-sex couples in all Caribbean parts of the Kingdom73 — there is still a relatively low level of vocally expressed social acceptance74 for same-sex marriage and very little public debate going on in Aruba. A comparative angle is known to regenerate the capacity of self-reflection on one’s own way of looking at things, inviting us to learn and better understand what might otherwise be considered objectionable in our Caribbean75 eyes76; helping us, as Eberle points out, to 67

Book 1 of the Civil Code Law deals with the law of persons and family law. Article 31, paragraph 1 Book 1 Civil Code. 69 The Bill to introduce remaining regulations and adaptations to Book 1 of the Aruban Civil Code (pertaining to Law on Persons and Family Law) is presently pending for consideration and passing in Parliament. The text of the proposed changes and its Explanatory Memorandum can be downloaded at: http://www.parlamento.aw/internet/ontwerp-landsverordening_3771/item/olv-wijziging-bwa-ab-89-gt-100-ivm-eenaantal-onderwerpen-die-nog-een-regeling-of-aanpassing-in-het-bwa-behoeven-aanvulling-bwa_7591.html 70 Article 31, paragraph 3 Book 1 Civil Code. 71 Explanatory Memorandum, p. 59, supra note 68. (It should however be noted that this adaptation is not included in the text currently available on the official website of Parliament). The explanatory note on article 51 also expressly blocks adoption by same-sex couples. Supra note 68, p. 10. 72 Caribisch Netwerk, Aruba Gay Pride zet Homohuwelijk op Agenda, 17 juli 2013; Consulted at: http://caribischnetwerk.ntr.nl/2013/07/07/arubaanse-gay-pride-zet-homohuwelijk-op-agenda/ 73 The Daily Herald, Dutch Caribbean LGBTI Groups jointly call for Marriage Equality, 20 july 2015; Consulted at: http://www.thedailyherald.com/index.php?option=com_content&view=article&id=57077:dutch-caribbean-lgbtigroups-jointly-call-for-marriage-equality&catid=1:islands-news&Itemid=54 74 There is no empirical data available on local perceptions regarding the issue of same-sex marriage. 75 It is remarkable to note that same-sex marriage is illegal everywhere in the Caribbean, except for Bonaire, Saba and Sint Eustatius. Remarkable, since Caribbean countries pride themselves on their emancipation from colonial rule, yet still hold on to laws that are colonial in their origin. According to one news article, Caribbean politicians are hesitant to support human rights of LGBT-citizens out of self-interest for fear of losing votes. Consulted at: http://www.aidsfreeworld.org/Publications-Multimedia/Countdown-to-Tolerance/2013/October/Gay-Rights-in-theCaribbean.aspx ; additionally, a great number of Caribbean states still have sodomy laws in place. Bahamas is the only independent Caribbean Commonwealth country to have abolished anti-sodomy law imposed by Britisch colonial rule. For an overview of Commonwealth Caribbean Countries criminalizing the LGBT community see: http://www.humanrightsinitiative.org/london/lgbt_rights/caribbean.pdf 76 See in this regard, p. 69-70, The Oxford Handbook of Comparative Constitutional Law, describing the goals (two of which overlap in this thesis, namely better understanding of one or more systems and the enhancement of the capacity for self-reflection) of comparative constitutional study 68

shed our built-in, native bias77. Or as my favorite Supreme Court Justice, Ruth Bader Ginsburg (a champion for comparative law in matters of equality78), so well expressed: ‘ . . . we are the losers if we neglect what others can tell us about endeavors to eradicate bias against women, minorities and other disadvantaged groups. For irrational prejudice and rank discrimination are infectious in our world. In this reality, as the determination to counter it, we all share’79.

Eberle supra note 457. Susan H. Farbstein, Justice Ginsburg’s International Perspective. In Essays in Honor of Justice Ruth Bader (Feb. 4, 2013). Consulted at: http://dash.harvard.edu/bitstream/handle/1/10582557/Farbstein.pdf?sequence=1 79 Ruth Bader Ginsburg, Affirmative Action: An International Human Rights Dialogue, 21 Cardozo L. Rev. L. 253, 260 (1999) (51st Cardozo Memorial Lecture). Consulted at: http://www.brookings.edu/research/articles/2000/12/winter-politics-ginsburg 78

CHAPTER 2

LEGAL & HISTORICAL CONTEXT

2.1. THE UNITED STATES SUPREME COURT 2.1.1 Origin, Jurisdiction & Role Years after the United States declared its independence from England, the US Constitution was drafted by the Constitutional Convention of 1787 and signed in the same year80. Upon its ratification in 1789, the United States became the first to adopt a written national constitution which produced a new government of the United States81. Through the first seven articles of the US Constitution, the American People grant power to three separate branches of government: the Congress, the president and the courts82. The Constitution not only provides checks and balances through the (horizontal) division of power between the three aforementioned government branches, but it also provides another check in the (vertical) distribution of government power between national and local authorities83, making the United States a Federal State that divides power between the Federal Government and the fifty States. This was the solution to what The Federalist84 considered the problem of majority tyranny as the main characteristic vice of democracy, which leads to the suppression of rights85. The US Constitution also promotes liberty by granting considerable scope for individuals to pursue their own endeavors86; providing protection of fundamental individual rights. It is particularly difficult to modify, as such an undertaking requires an elaborate and difficult procedure87. The two alternative mechanisms are prescribed in Article V of the Constitution, and both require approval of three-fourths of the States88. The most recent Amendment to the Constitution was ratified in 199289. This difficulty to change and depart from the constitutional text is a defining characteristic of the American Constitution90. It is an attempt by the American society to limit itself to protect the values it most cherishes; providing an additional protection against the tyranny of the majority; of protection of the rights of minorities from oppression by social majorities91. 80

Devine & Hansen 1999, 28. Devine & Hansen 1999, 28. 82 Devine & Hansen 1999, 28. 83 Devine & Hansen 1999, 29. 84 The Federalist, commonly referred to as The Federalist Papers, is a series of 85 essays written by Hamilton, Jay and Madison between 1787-1788, to urge New Yorkers to ratify the proposed US Constitution. Over time, The Federalist became regarded as an important statement of American constitutional philosophy and is nowadays considered as an important commentary on the text of the Constitution. (Beeman 2010, 93). 85 Tulis 2001, 118. 86 Tulis 2001, 122. 87 Chemerinsky 2015, 6. 88 Chemerinsky 2015, 6. 89 Originally proposed in 1789. Consulted at: http://www.archives.gov/exhibits/charters/constitution_amendments_11-27.html 90 Chemerinsky 2015, 6. 91 Chemerinsky 2015, 7. 81

The American Constitution can thus be considered as an intentionally antimajoritarian document, protecting long-term values92. And above all this, there is an American public belief in the Constitution’s legitimacy93. There are two constitutional provisions that are important to understand the American federalist structure. The first one is the Tenth Amendment, which declares that ‘the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the People’94. The second one is the Supremacy Clause articulated in Article VI of the Constitution, which states that the ‘Constitution, the Laws of the United States which shall be made in Pursuance thereof, and all Treaties made [. . . ], under the authority of the United States Government shall be the supreme Law of the Land’95. This Supremacy Clause establishes a clear hierarchical relationship between the federal government and the States; state and local laws which are considered in conflict with federal law are deemed preempted96. This means that all States must follow the Federal Constitution, which is the Supreme Law of the Land. Accordingly, State laws that are in conflict with the Constitution are deemed unconstitutional and therefore unenforceable. The Supreme Court has two types of jurisdictions: original97 – pertaining to cases involving ambassadors, other public ministers and consuls, and those in which a State is party – and appellate jurisdiction – regarding all other cases both as to law and fact98. The latter being its most important99, and which essentially involves cases on appeal from lower federal courts, and cases from State Supreme Courts whenever a substantial federal question is involved. It is its appelate jurisdiction that makes the Supreme Court ‘the most important tribunal in the American system’, with a very wide appelate jurisdiction to ensure a final, authoritative interpretation of the constitution and the laws and treaties of the United States. When ruling on a constitutional issue, the Supreme Court’s judgment is final. This can only be changed by the rarely used procedure of constitutional amendment or by a new ruling of the Supreme Court100.

Chemerinsky 2015, 8. Tulis 2001, 125. 94 Chemerinsky 2015, 3. 95 Chemerinsky 2015, 3-4. 96 Chemerinsky 2015, 4. 97 Original jurisdiction is the court’s legal authority to hear the case first. 98 Chemerinsky 2015, 35. 99 Chemerinsky 2015, 35. 100 The Supreme Court in the American System of Government, UMKC School of Law. Consulted at: http://law2.umkc.edu/faculty/projects/ftrials/conlaw/supremecourtintro.html 93

In the American system of checks and balances, the judiciary plays an important role in providing checks over the executive and the legislative branches. Article III of the US Constitution establishes a federal judicial system and defines its powers, composed of one Supreme Court and lower federal courts, which were to be established by Congress. Supreme Court Justices have a life tenure and their salaries cannot be decreased. They are selected by the president with the ‘advice and consent of the Senate’101. Organisational details such as the number of Justices, were left to determination by Congress102. The Supreme Court currently consists of nine Justices. Paul remarks that throughout American history, the Supreme Court’s proper role has been an unresolved question103. He notes however, that attacks on the Supreme Court have resulted from specific decisions, not the general powers of this judicial body104. According to Paul, the American people always found peaceful and legitimate political/legal ways for overcoming Supreme Court decisions they disapproved of105. 2.1.2 Judicial Review The Constitution gives no express provision for the exercise of judicial review by the Supreme Court. The power of judicial review was vested by the Supreme Court itself in Marbury v. Madison106, establishing the authority of the judiciary to review the constitutionality of executive and legislative acts. In this decision the Chief Justice affirmed that the Supreme Court’s responsibility to overturn unconstitutional legislation was a necessary consequence of its sworn duty to uphold the Constitution, stating that ‘it is emphatically the province of the judicial department to say what the law is’107. Since this ruling, the Supreme Court has maintained review as the self-proclaimed authoritative interpreter of the US Constitution108. It is the final authority for all constitutional interpretation. Its views resolve disputes and are final, until reversed by constitutional amendment109. Chemerinksy points out that the power of the judiciary to consider the constitutionality of laws established in the Marbury ruling, articulated a 101

Chemerinsky 2015, 2. Pollock 2009, 2. 103 Paul 1959, 2. 104 Paul 1959, 2. 105 Paul 1959, 2. 106 Marbury v. Madison, 5 U.S. 137 (1803). Marbury v. Madison congressional acts. Fletcher v. Peck state acts. 107 The Supreme Court in the American System of Government, UMKC School of Law. Consulted at: http://law2.umkc.edu/faculty/projects/ftrials/conlaw/supremecourtintro.html 108 Cooper v. Aaron, 358 U.S. 1 (1958). See also Chemerinsky 2015, 29. This is only the case, whenever the Supreme Court does not state a matter to be a political question; known as the political question doctrine. See Chemerinsky 2015, 28. For more on the political question doctrine, see Chemerinsky 2015 § 2.8. 109 Ibid. 102

role that became a deep-rooted part of American government110. The role of the Supreme Court derives from its authority to invalidate legislation or executive actions which it considers to be in conflict with the Constitution. It is this power of judicial review that has given the US Supreme Court a crucial responsibility in assuring individual rights, as well as in maintaining a ‘living Constitution’ whose broad provisions are continually applied to new situations111. There is an ongoing debate centered around the question whether the Constitution is a ‘living Constitution’. Originalist at the opposing side, assert that Judges should limit themselves to enforcing norms that are stated or implicit in the Constitution and that the Constitution’s meaning must be drawn from the specific intent of the Framers112. Those in favor of interpreting the Constitution as a ‘living Constitution’, regard the Constitution as having a dynamic meaning that changes over time and that should evolve by interpretation113. The differences in interpretative approaches have been reflected by the Supreme Court’s adherence to each of these two competing views114. One of the vital principles of the US court system and a bulwark of efforts to institutionalise human rights in law, is the adherence to precedent; precedent built legal integrity and inspired public confidence in the court and its protections115. Another important aspect is that the Supreme Court does not give full consideration to all of the cases it has authority to review116. The party seeking a review by the Supreme Court does so by ‘petitioning’ the Court to issue a ‘writ of certiorari’. If the Supreme Court decides to review one or more issues in such a case it grants ‘certiorari’ (also abbreviated as ‘cert.’). If the Supreme Court decides not to review the case it denies ‘cert.’ The decision whether to grant or deny cert. is discretionary117. The next paragraph identifies and describes the two relevant American provisions contained in the first section of the Fourteenth Amendment: the due process of law and equal protection clauses. Starting with a brief historical context which brought about its ratification.

110

Chemerinsky 2015, 45. The Supreme Court in the American System of Government, UMKC School of Law. Consulted at: http://law2.umkc.edu/faculty/projects/ftrials/conlaw/supremecourtintro.html 112 Chemerinsky 2015, 18-19. 113 Chemerinsky 2015, 18-19. 114 Chemerinsky 2015, 18. 115 Devine & Hansen 1999, 8. 116 Consulted at: https://www.law.cornell.edu/wex/certiorari 117 Consulted at: https://www.law.cornell.edu/wex/certiorari See also Judiciary Act of 1925, 43 Stat. 936 (1925). Also known as The Certiorari Act. Consulted at: http://www.usconstitution.org/federal-judiciary/details/judiciary-act-of-1925-43-stat-936-1925Consulted at: 111

2.2 THE UNITED STATES CONSTITUTION 2.2.1 The Fourteenth Amendment The Fourteenth Amendment to the US Constitution is considered one of the most important and far-reaching constitutional amendments in American history118. Its purpose and function cannot be understood outside the context which gave rise to its ratification as a new guarantee of the US Consitution. The introduction of the Fourteenth Amendment changed the Constitution in fundamental ways. Firstly, it introduced the notion of equality into the Constitution119. Secondly, it created a fundamental shift in the American federal system; while the Bill of Rights was directed at the Federal Government – protecting civil liberties of citizens against interference of the Federal Government – the Fourteenth Amendment was directed at the States, protecting citizens against measures of State governments that interfered with the basic equal rights of citizens120. The Fourteenth Amendment became part of the American Constitution121 during the Reconstruction Era on July 28, 1868122. Its purpose was to secure the fruits of Union victory in the Civil War by guaranteeing equal civil rights for the freed slaves and loyal governments in the South123. It greatly expanded civil rights protections in the United States and it is the most cited in litigation than any other amendment to the US Constitution. Eric Foner, leading authority on the Reconstruction Era of American history, calls the Fourteenth Amendment ‘the most important bulwark of the rights of American citizens’124 and ‘one of the most important lasting consequences of the immense changes produced by the Civil War’125, because of its promise of equality of all Americans before the law. According to Foner, the American legal and

118

Foner 2003, 425. See also Beeman 2010, 77. See also Chemerinsky 2015, 14. Foner 2011, lecture. 120 Id. 121 https://www.congress.gov/constitution-annotated/ 122 Foner 2003, 428. It appears officially in 14 Stat. 358 under date of June 16, 1866, but it was on July 28, 1868, that Secretary Seward officially certified without reservation that the amendment was a part of the Constitution. Constitution Annotated, Amendments to the Constitution of the United States. Consulted at: http://www.gpo.gov/fdsys/pkg/GPO-CONAN-REV-2014/pdf/GPO-CONAN-REV-2014-7.pdf 123 Ibid. at 427. 124 Ibid. at 434 125 Ibid. at 428. 119

constitutional system has been profoundly shaped by the Fourteenth Amendment126. The Fourteenth Amendment was part of the so-called Reconstruction Amendments127 and made it possible for the Federal Government to override State actions that deprived citizens of equality128. As by Foner, the Fourteenth Amendment ‘transformed the constitution’ into a ‘vehicle through which members of vulnerable minorities could stake a claim to substantive freedom and seek protection against misconduct by all levels of government’.129 But, it took some time (almost a century) before the provisions of this Amendment would provide the desired equality guarantee. Foner notes that the status of the Fourteenth Amendment was elevated by the so-called ‘rights revolution’ untertaken by the Warren Court130, making it the major constitutional provision to which ‘aggrieved groups of all sorts − blacks, women, gays, welfare recipients, the elderly, the disabled − appealed in seeking to expand their legal rights and social status’. Foner emphasises that it is as a result of the twentieth-century Supreme Court’s reinvigorative interpretation of the Fourteenth Amendment, that today more Americans can enjoy more rights and more freedoms than ever before131. The relevant first section of the Fourteenth Amendment reads as follows: AMENDMENT XIV132 SECTION 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

126

Ibid. at 430. The immense political struggle that followed after the period of the American Civil War, led Congress and the states to enact ‘a series of laws and constitutional amendments that for the first time in American history established as a matter of federal law the principle of equal rights for all citizens regardless of race’. Eric Foner, The Supreme Court and the History of Reconstruction - and Vice-Versa, 112 Colum. L. Rev. 1585-1606 (2012). Consulted at: http://columbialawreview.org/the-supreme-court-and-the-history-of-reconstruction-and-vice-versa/ The three Amendments known as the Reconstruction Amendments were: Amendment. XIII, outlawing slavery and involuntary servitude; Amendment XIV, § 1, granting citizenship to ‘[a]ll persons born or naturalized in the United States’ regardless of race and prohibiting state infringement of ‘privileges or immunities’, ‘equal protection’, as well as ‘life, liberty, or property, without due process of law’. Amendment XV, extending right to vote regardless of ‘race, color, or previous condition of servitude’. 128 Ibid. at 431. 129 Ibid. at 431. 130 The Warren Court issued the landmark ruling in Brown v. Board of Education, 347 U.S. 483 (1954), which ended legal segregation in public schools in 1954, and started a new era for equal protection jurisprudence, wherein this clause became a key provision for combating discrimination and for protecting fundamental rights. See Chemerinsky 2015, 684. 131 Ibid. at 434. 132 The Fourteenth Amendment consists of a total of five sections. The complete text of this article can be consulted at: http://www.gpo.gov/fdsys/pkg/GPO-CONAN-REV-2014/pdf/GPO-CONAN-REV-2014-7.pdf 127

This section contains the due process of law and equal protection clauses wich have played a crucial role in the development and protection of human rights in the United States133. The due process clause (formulated in the penultimate sentence of Section 1 of the Fourteenth Amendment) assures that all States operate within the law and provide fair procedure134, stating that no State shall ‘deprive any person of life, liberty, or property, without due process of law’. The equal protection clause (provided in the final sentence of Section 1 of the Fourteenth Amendment) guarantees equal protection by the law, stating that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws’. There are two types of due process under the Fourteenth Amendment: procedural due process135 and substantive due process. For this thesis, the substantive due process is of relevance. The two main areas where the substantive due process clause is applied are in the protection of unenumerated constitutional rights (to safeguard rights that are not mentioned in the Constitution)136 and whenever challenges to policy behavior are concerned137. Substantive due process asks the question of whether the government’s deprivation of a person’s life, liberty or property is justified by a sufficient purpose138. When examining a claim involving substantive due process the court considers three elements. First, there must be a deprivation; second, this deprivation must be of life, liberty or propery, and thirdly, it must be shown that the government did not have an adequate justification for its action139. Showing that there is no adequate justification for the government’s action when the government takes away life, liberty or property, must always meet at least a rational basis review140. (The level of scrutiny is a test used by the court to evaluate the constitutionality of a law141. The minimal level of review is the ‘rational basis test’142. Under this test, a law will be upheld if it is rationally related to a legitimate government purpose143). But, whenever the claim involves a fundamental right, the government must meet strict scrutiny in order to show an adequate

133

Robertson 2004, 78. Consulted at: http://www.law.cornell.edu/wex/due_process 135 Procedural due process refers to the question of whether the government has followed the proper procedures when taking away life, liberty of property of an individual. Chemerinsky 1999, 1501. 136 Chemerinsky 1999, 1509. 137 Chemerinsky 1999, 1522. 138 Chemerinsky 1999, 1501. 139 Chemerinsky 1999, 1527. See also Mathews v. Eldridge, 424 U.S. 319 (1976). 140 Chemerinsky 1999, 1533. 141 Ibid. 142 Chemerinsky 2015, 552. 143 Ibid. 134

justification144. (To pass strict scrutiny, the legislature must have passed the law to further a ‘compelling governmental interest’145.) The equal protection clause requires that the laws of a State must treat an individual in the same manner as others in similar conditions and circumstances146. The basic question posed when examining a claim involving equal protection, is whether the government’s classification is justified by a sufficient purpose. The outcome in areas concerning individual rights and equal protection also depends in great part on the ‘level of scrutiny’ applied by the court147. When examining a claim involving equal protection the court considers three main questions: i. what is the classification ? ii. what level of scrutiny should be applied ? iii. does the particular government action meet the level of scrutiny ?148. The first question identifies how the government is distinguishing among people. There are two basic ways of establishing a classification. One is by showing that the classification exists on the face of law (the law – in its very terms – draws a distinction among people based on a particular characteristic)149. The other way, is by demonstrating that a facially neutral law has a discriminatory impact and a discriminatory purpose150. The next step after identifying the classification is to identify the level of scrutiny to be applied151. The different levels of scrutiny depend on the type of discrimination involved152. The third and final step in the analysis is determining whether the government action being challenged as denying equal protection, meets the level of scrutiny. This involves an evaluation of both the law’s ends and its means153. For strict scrutiny the end must be deemed compelling for the law to be upheld; for intermediate scrutiny the end has to be regarded as important; and for the rational basis test, there only has to be a legitimate purpose154. Chemerinsky points out that the use of substantive due process clause or the equal protection clause to protect fundamental rights has the same effect, namely that both subject government infringements to strict scrutiny155. If a right is not fundamental,

144

Chemerinsky 1999, 1534. https://www.law.cornell.edu/wex/strict_scrutiny 146 Consulted at: http://www.law.cornell.edu/wex/due_process 147 Chemerinksy 2015, 551. 148 Chemerinsky 2015, 686. 149 Chemerinsky 2015, 686. 150 Chemerinsky 2015, 687. 151 Chemerinsky 2015, 687. 152 Chemerinsky 2015, 687. 153 Chemerinsky 2015, 689. 154 Chemerinsky 2015, 689. 155 Chemerinsky 2015, 691. 145

then only rational basis review is applied for claims brought under both clauses mentioned156. As for the right to marry, there is no mention of this right in the text of the US Constitution. The right to marry is protected under both the due process and the equal protection clauses of the Fourteenth Amendment157. According to Chemerinsky, it is of little consequence which of these two is used by the court as the basis for considering that under either provision, the Court must rule whether a claimed liberty is sufficiently important to be regarded as fundamental, although it is not mentioned in the text of the Constitution158. As mentioned above, the main difference lies in how the constitutional arguments are presented. Under due process, the constitutional question is whether the governmentâ&#x20AC;&#x2122;s interference is justified by a sufficient purpose, while under equal protection the question is whether the governmentâ&#x20AC;&#x2122;s discrimination as to who can exercise the right is justified by a sufficient purpose159. The next chapter takes a look at the European legal and historical context, as well as the relevant human rights provisions.

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Chemerinsky 2015, 691. E. In Zablocki v. Redhail 434 U.S. 374 (178), the majority opinion held the right to marry as a fundamental right to be protected under the liberty of the due process clause, while the concurring opinion used an equal protection approach. (Chemerinsky 2015, 813). 158 Chemerinksy 2015, 813. 159 Chemerinsky 2015, 813. 157

THE EUROPEAN LEGAL & HISTORICAL CONTEXT

3.1 THE EUROPEAN COURT OF HUMAN RIGHTS 3.1.1 Origin, Jurisdiction & Role Established in 1959, the European Court of Human Rights is considered as one of the most influential courts in the world, impacting the lives and freedoms of over 800 million people in 47160 member states161. Moreover, the ECtHR is regarded as ‘the world’s most effective international human rights tribunal’162. The Court is part of the European Human Rights system known as the Council of Europe, consisting of the Secretary General, the Committee of Ministers, the Parliamentary Assembly, the Congress of Local and Regional Authorities and the Commissioner for Human Rights as well as the Conference for International Non Governmental Organisations163. The origin of the ECtHR can be traced back to the reconstruction of Western Europe after the Second World War, which saw the establishment of the Council of Europe. The CoE is an intergovernmental organisation that was set up with the aim ‘to achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress’164. To help achieve this aim, the CoE created the European Convention on Human Rights – against the backdrop of the atrocities of Nazism165. The Preamble of the ECHR resolves that ‘ […] the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law, […] take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration’166. It became open for signature in 1950 and came into force in 1953167. The adoption of the Convention and its evolvement is considered as ‘the most sustained and elaborate system of international human rights enforcement’168. The ECHR contains a wide range of civil and political rights. The original thirteen rights contained in Articles 2 to 14 of the Convention represent the most basic rights of individuals, which were the primary concern of Western Europe resulting from the 160

Consulted at: http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=005&CM=7&DF=14/05/2015&CL=ENG 161 Babukova 2013, 9. 162 Helfer 2008, 126. 163 Consulted at: http://www.coe.int/en/web/about-us/structure 164 Article 1(a) Statute of the Council of Europe. Consulted at: http://conventions.coe.int/Treaty/en/Treaties/Html/001.htm 165 Grabenwarter 2014, 101. (Thirty-six and a half million Europeans died during the Second World War). 166 Preamble to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Consulted at: http://conventions.coe.int/Treaty/en/Treaties/Html/005.htm 167 Consulted at: http://www.echr.coe.int/Pages/home.aspx?p=basictexts 168 Quint 2001, 606.

systematic human rights violations experienced during the Second World War, and the looming totalitarian systems in parts of Eastern Europe169. Accordingly, the ECHR became Europe’s bulwark against human rights violations170, making it a prerequisite for a democratic society171. The ECHR sets out a legally binding obligation on its members to guarantee the listed human rights to everyone (including non-nationals) within their jurisdiction172. Each member state is bound to make sure that its national laws and policies comply with the Convention’s articles and that it will take positive action whenever there is a violation of human rights; if necessary by introducing the required legislation in its national Parliament173. Blackburn & Polakiewicz point out that the fundamental purpose of the ECHR is to protect the rights of the individual and not to lay down mutual obligations between states which are to be restrictively interpreted174. According to Professor Wildhaber, former President of the ECtHR, the main and overriding aim of the system set up by the ECHR is to ensure that in each and every Contracting State the rights and freedoms are effectively protected’175. Wildhaber notes that this essentially entails that ‘the relevant structures and procedures are in place to allow individual citizens to vindicate those rights and to assert those freedoms in the national courts’176. In order to ensure the observance of fundamental human rights by the parties to the Convention and its Protocols, the Convention established the European Court of Human Rights177. The Court’s jurisdiction extends to all cases concerning the interpretation and application of the ECHR178. Initially, acceptance of the jurisdiction of the ECtHR was optional. It became compulsory for all CoE member states following the entry into force of Protocol No 11 on 1 November 1998. The ECtHR reviews the implementation of the Convention, by hearing cases brought through applications lodged by individuals against member states. Recognition of this so-called right to individual application is mandatory for all member states179 and final judgments of the ECtHR are legally binding on the respondent state180. However, before applying to the ECtHR all domestic remedies must be exhausted181. Currently, there are 47 Judges, one 169

Blackburn & Polakiewicz 2001, 9. Ibid, 102. 171 Ibid, 101. 172 FRA & CoE 2010, 12. 173 Blackburn & Polakiewicz 2001,11. 174 Blackburn & Polakiewicz 2001, 28. 175 2004, 83. 176 Ibid. 177 Article 19 ECHR. 178 Article 45 ECHR. 179 Article 34 ECHR. 180 Article 46 ECHR. This article lays down a general obligation to execute the Court’s final judgment. The ECtHR itself has no way of enforcing its decisions. The Committee of Ministers is responsible for supervising the enforcement of the Court’s judgments. See Article 46(2-5) ECHR. 181 Article 35(1) ECHR. 170

for each member state182, who nominates a Judge. The Parliamentary Assembly of the CoE makes the final selection and official appointment183. Judges do not represent their States, and sit in their individual capacity184. They are elected for a period of nine years, without the possibility of re-election185. The terms of office of the Judges expires at the age of 70186. Judges of the ECtHR are required to apply the protections provided for under the ECHR, regardless of whether a party to the proceedings invokes them187. The ECtHR’s competence is limited to finding a violation of Convention rights. It does not have the power to strike down any piece of legislation of member states188. If the ECtHR finds a state to be in violation of the ECHR, this state has the obligation to put an end to the breach189. So, only the member state being a party to a case is obliged to abide by the Court’s judgment190. However, Grabenwarter points out that the judgment does have an ‘indicative effect’ for other member states191. The European Court of Human Rights has four main formal functions: i. hearing interstate complaints where they arise, ii. hearing individual complaints where they arise and are deemed admissible, iii. providing Advisory Opinions when requested192, and iv. clarifying interpretation of judgments and assessing whether judgments are being abided by where requested by a super-majority of the Committee of Ministers193. Of these four central functions, the individual human rights adjudication geared towards ensuring, on a case‐by‐case basis, that every genuine victim of a violation receives a judgment from the Court can be considered as the core function of the ECtHR194. Some commentators ruminate on what is considered as the dual functionality of the Court, noting that it fulfils an adjudicatory role as well as a constitutional role. In this regard, the adjudicatory role refers to the Court’s core function as described above. The

182

Article 20 ECHR. Article 22 ECHR. See also Blackburn & Polakiewicz 2001,17. 184 Article 21 (2) ECHR. 185 Article 23 (1) ECHR. 186 Article 23 (2) ECHR. 187 FRA & CoE, Handbook on European Non-Discrimination Law, 2010, 11. Consulted at: http://www.echr.coe.int/Documents/Handbook_non_discri_law_ENG_01.pdf 188 Ibid. 189 Article 46 ECHR. See also Grabenwarter 2014, 107. 190 Article 46 ECHR. 191 Grabenwarter 2014, 107. 192 Article 47 ECHR. 193 Article 46 ECHR. See http://humanrights.ie/international-lawinternational-human-rights/interlaken-and-the-roleof-the-european-court-of-human-rights/ 194 Harmsen, Robert, The European Court of Human Rights as a ‘Constitutional Court’: Definitial Debates and the Dynamics of Reform, in: Judges, Transition, and Human Rights, 36 (John Morison, Kieran McEvoy & Gordon Anthony (Eds.), 2007. 183

constitutional role refers to the Court’s establishment of European minimum standards of human rights protection195. In this respect it is important to note how the Court perceives itself. In Handyside v. United Kingdom196 the Court stated that ‘the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights’. The Court subsequently accentuated in Z. and Others v. the United Kingdom that, ‘the object and purpose underlying the Convention, as set out in Article 1, is that the rights and freedoms should be secured by the Contracting State within its jurisdiction. It is fundamental to the machinery of protection established by the Convention that the national systems themselves provide redress for breaches of its provisions, the Court exerting its supervisory role subject to the principle of subsidiarity’ 197. This shows that the ECtHR views its role as that of providing a subsidiary supervision. However, the Court has also repeatedly noted that, ‘although the primary purpose of the Convention system is to provide individual relief, its mission is also to determine issues on public-policy grounds in the common interest, thereby raising the general standards of protection of human rights and extending human rights jurisprudence throughout the community of Convention States’198. Meanwhile and as a result of this evolving self-understanding, the ECtHR has developed to take on other functions: ‘protecting individuals and groups from the excesses of majoritarianism in healthy democracies’ and ‘resolving the relatively minor and discrete conflicts of interests prevalent in any complex society’199. Madsen & Christoffersen note that the most important factor defining the Court’s role is that of individual applicants in the development of the enforcement machinery200. According to Madsen & Christoffersen, the traditional desire gradually and cautiously to develop case law, inclines the Court to focus on the circumstances of specific cases rather than pronouncing sweeping statements of principle201. Madsen & Christoffersen point out that the Court has always faced the choice between generally developing the standards of the ECHR and granting individual relief in specific cases202. The traditional focus on individual relief is codified in the delimitation of the Court’s advisory jurisdiction pursuant to Art 47 and deeply embedded in the culture of the Court and the environment surrounding it. The principal character of the majority of 195

A reform process known as the ‘Interlaken Process’ has been taking place since 2010. It essentially involves conferences and reform proposals to improve and guarantee the long-term efectiveness of the ECHR system. http://www.coe.int/t/dghl/monitoring/execution/Themes/Interlaken/index_en.asp 196 Handyside v. United Kingdom, no. 5493/72, §48 ECHR 1976. 197 Z. and Others v. the United Kingdom, no. 29392/95, §103, ECHR 2001-V,. 198 Karner v. Austria, No. 40016/98, §26, ECHR 2003-IX; repeatedly quoted in subsequent rulings. 199 Helfer 2008, 129. 200 Madsen & Christoffersen 2013, 187. 201 Madsen & Christoffersen 2013, 189. 202 Madsen & Christoffersen 2013, 190.

norms of the ECHR makes a process of weighing and balancing inevitable, just as the development and elucidation of general standards sits ill with the Court’s general reluctance to intervene in domestic matters and to approach matters from a broader perspective of human rights policy203. Accordingly, the nature of the system provides a fundamental challenge to the development of the Court’s role as an institution granting what may be called constitutional justice204. 3.1.2 Judicial Review The first time the ECtHR described its standard of review was in the Belgian Linguistic case; by pointing out that the disproportionality of differential treatment must be ‘clearly established’205. It can be stated that the ECtHR exercises a weak judicial review for the reason that its judgments are ultimately implemented by the member states, which often retain wide discretion over how to implement these judgments206. Furthermore, Gerards and Fleurens note that member states will hardly ever accept farreaching interpretations of fundamental rights that are not strictly required by the ECtHR207. In this regard, the ECtHR has repeatedly stressed what it considers to be an important principle: the so-called evolutive interpretation208. The interpretation and meaning of terms in the human rights articles of the ECHR are ‘dynamic’ or evolutionary209. This means that they are to be understood and applied according to changing Europe-wide social and poltical values and attitudes. The ECHR is thus regarded as a ‘living instrument’. The Court has time and again reiterated that the ECHR is a ‘living instrument’, which entails that the rights enshrined in the Convention have to be interpreted in the light of present day conditions so as to be practical and effective210. When applying the provisions set forth in the ECHR, sociological, technological and scientific changes as well as evolving standards in the field of human rights and altering views on morals and ethics have to be considered. Another important interpretative principle is the ‘doctrine of margin of appreciation’. The doctrine of ‘margin of appreciation’ is best known from the Court’s judgment in the case of Handyside v. United Kingdom211, in which it considered that ‘[b]y reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international Judge to give an 203

Madsen & Christoffersen 2013, 189. Madsen & Christoffersen 2013, 190. 205 Belgian Linguistic case (Merits), Series A, No 6, 1968, 34, §10. As cited by Madsen & Christoffersen: 2013, 183. 206 Dzehtsiarou 2015, 169. See also Grabenwarter 2014, 107. 207 Gerards & Fleurens 2013, 3. 208 Blackburn & Polakiewicz 2001, 28. 209 Blackburn & Polakiewicz 2001, 28. 210 http://echr-online.info/echr-introduction/#Living%20instrument 211 Handyside v. United Kingdom, no. 5493/72, ECHR 1976. 204

opinion on the exact content of these requirements as well as on the "necessity" of a "restriction" or "penalty" intended to meet them’212. Greer defines the margin of appreciation as the space for manoeuvre that Strasbourg is willing to give to national authorities in fulfilling their Convention obligations213. As per Geer, all commentators agree that no simple formula can describe how the margin of appreciation works and that its most striking characteristic remains its casuistic, uneven, and largely unpredictable nature214. The ‘doctrine of margin of appreciation’215 is the Court’s way of seeking a common denominator of morally acceptable standards and procedures across Europe while providing a certain space for national governments to determine sensitive or controversial issues216. Benvenisti makes an interesting point by noting that the universal aspirations of the Convention are to a large extent, compromised by the doctrine of the margin of appreciation217. According to Benvenisti, the principled recognition of moral relativism of the margin of appreciation is at odds with the concept of universality of human rights218. Benevisti argues that the margin of appreciation should only be applied in questions affecting the majority and should not be tolerated when minority rights are at stake219. Protocol No. 15, adopted in May 2013 and currently in the process of ratification by the 47 Contracting Parties, adds to the Preamble of the Convention references to both the margin of appreciation and subsidiarity220. Article 1 of this Protocol, states that in accordance with the principle of subsidiarity, member states enjoy a margin of appreciation in how they apply and implement the Convention, depending on the circumstances of the case and the rights and freedoms engaged221. The following paragraph identifies and describes the provisions of the ECHR which are relevant for applications concerning same-sex marriage.

212

Handyside v. United Kingdom, no. 5493/72, § 48, ECHR 1976. Greer 2010, 2. 214 Greer 2010, 3. 215 Handyside v. United Kingdom, no. 5493/72, ECHR 1976. 216 Blackburn & Polakiewicz 2001, 21. 217 Benvenisti 1999, 843. 218 Benvenisti 1999, 844. 219 Benvenisti 1999, 854. 220 Spielmann 2014, 1. See also Protocol No. 15 to the Convention for the Protection of Human Rights and Fundamental Freedoms. Consulted at: <http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=213&CM=7&DF=27/07/2015&CL=EN G> 221 Ibid. 213

3.2 THE EUROPEAN CONVENTION ON HUMAN RIGHTS 3.2.1 Article 8 ECHR: The Right to Respect for Private and Family Life Article 8 of the Convention guarantees protection of the right to respect for private and family life. The main purpose of this right is ‘to protect the individual against arbitrary action by the public authorities’222. This article essentially shields the four dimensions of personal autonomy of an individual: one’s private life, family life, home and correspondence223. The relevant dimensions for this thesis are ‘private life’ and ‘family life’. In Schalk and Kopf v. Austria224 the Court recognised same-sex relationships as a form of ‘family life’, granting relationships between same-sex couples protection under the ‘family life’ limb of Article 8225. The Court’s consideration of the enjoyment of family life by same-sex couples was based on the 'rapid evolution of social attitudes towards same-sex couples' and the fact that a 'considerable number of member [s]tates have afforded legal recognition to same-sex couples'226. In Vallianatos and Others v. Greece227 the Court also asserted that there was not just one way or one choice when it came to leading one’s family or private life. Article 8 is considered as one of the most open-ended provisions of the Convention: over time it has come to cover a growing number of issues, extending its protection to a range of interests that would not fall under the scope of any other articles228. This is partly due to the fact that there is no comprehensive definition of Article 8 interests, thus making them fully adaptable to changing times229. Burbergs calls this right ‘the nursery in which new rights are born’230. Article 8 reads as follows: 1.

Everyone has the right to respect for his private and family life, his home and his correspondence.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

222

Roagna 2012, 9. Roagna 2012, 9. 224 Schalk and Kopf v. Austria, no. 30141/04, ECHR 2010. 225 Previously, the Court’s case-law only acknowledged that the emotional and sexual relationship of same-sex couples constituted ‘private life’, and not ‘family life’, even where a long term relationship of cohabiting partners was at stake. See Schalk and Kopf v. Austria, no. 30141/04, § 92, ECHR 2010. 226 Schalk and Kopf v. Austria, no. 30141/04, § 93, ECHR 2010. 227 Vaillanatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 84, ECHR 2013. 228 Roagna 2012, 9. 229 Roagna 2012, 9. 230 See Burbergs 2013. 223

When examining complaints under Article 8, the Court applies a two-stage test231. The first stage is to ascertain the applicability of Article 8 by determining whether the complaint falls within the scope of Article 8232. The answer will depend on whether, in the light of the specific circumstances, it can be concluded that the situation depicted amounts to ‘private life’ or ‘family life’, within the meaning of the provision233. After establishing the applicability of Article 8, the Court proceeds to the second stage, which is to determine whether there has been an interference with the Article 8 rights. If an interference has occured, the Court goes on to seek an answer to the following questions: Is the interference in accordance with law? Does it pursue a legitimate aim? Is it necessary in a democratic society?234 If the Court finds no interference with the exercise or enjoyment of the right protected under the first paragraph of Article 8, the Court may go on to consider whether the member state has a positive obligation to put in place measures to ensure the protection of the right invoked235. 3.2.2 Article 12 ECHR: The Right to Marry Article 12 of the Convention protects the right to marry and to found a family. It states that: 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 right to marry is not subject to any specific limitations; there is no second paragraph laying down restrictions. But, it is incorporated into domestic legislation and its exercise may thus be restricted, provided that this does not impair its substance236. In Rees v. United Kingdom237, the Court unanimously noted that the right to marry referred to the traditional marriage between persons of opposite biological sex so that the purpose of Article 12 was mainly to protect marriage as the basis of the family238. In Cossey v. United Kingdom239, the Court reiterated its line of argument, but this time by 14 votes to 4; the Court recognised that some member states would regard as valid a marriage between the applicant and a man, but the Court ‘[did] not consider that it [was] open to it to take a new approach to the interpretation of Article 12 on the point

231

Roagna 2012, 10. Roagna 2012, 11. 233 Roagna 2012, 11. 234 Roagna 2012, 11. 235 Roagna 2012, 11. 236 Renucci 2005, 40. See also Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 99, ECHR 2002-VI. 237 Rees v. United Kingdom, no. 9532/81, ECHR 1986. 238 Torres Gutiérrez 2012, 442. 239 Cossey v. United Kingdom, no. 10843/84, ECHR 1990. 232

at issue240. Gutiérrez views the dissenting opinion of Judge Martens in the Cossey case as particularly significant; it stated that what was being discussed was the search for full legal recognition of an individual’s newly acquired sexual identity, adding that ‘human dignity and human freedom imply that a man should be free to shape himself and his fate in the way he deems best fits his personality’ and ‘nor can it be maintained that tradition implies that sex in this context can only mean the biological sexual constitution of an individual which is fixed at birth’241. Other individual opinions in this case also recognised that ‘there [was] a growing awareness of the importance of each person’s own identity and of the need to tolerate and accept the differences between individual human beings’242. Johnson argues that the ECtHR has ‘repeatedly and explicitly’ interpreted Article 12 ECHR to exclude same-sex couples from the enjoyment of the right to marry243. In Schalk and Kopf v. Austria the Court held that member states are not required to grant same-sex couples access to marriage. The Court reiterated that the institution of marriage had undergone major social changes since the adoption of the Convention244, but that there was no European consensus regarding same-sex marriage, considering that [back then] only six out of forty-seven CoE member states allowed same-sex marriage245. The Court further considered a comparative examination of Article 12 ECHR and Article 9 of the Charter246. Article 9 of the Charter also contains the right to marry, but the wording of this provision deliberately makes no reference to ‘men and women’, thus leaving room for application of the right to marry to same-sex couples. However, according to the ECtHR, by referring to national laws, Article 9 of the Charter leaves the decision whether or not to allow same-sex marriage to the member states247. This led the Court to conclude that having regard to Article 9 of the Charter248, it would no longer consider that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two persons of the opposite sex. The Court consequently held that it cannot be said that Article 12 is inapplicable to the applicants’ complaint, but as matters stood, the question whether or not to allow

240

Torres Gutiérrez 2012, 442. Torres Gutiérrez 2012, 443. 242 Torres Gutiérrez 2012, 443. 243 Johnson 2015, 207-224. See also Johnson, Paul, Is Article 12 of the European Convention on Human Rights applicable to same-sex couples ? Sexual Orientatoin Blog, May 8, 2015. Consulted at: http://europeancourts.blogspot.nl/2015/05/is-article-12-of-european-convention-on.html 244 This was first pointed out by the ECtHR in Christine Goodwin v. the United Kingdom [GC], no. 28957/95, ECHR 2002-VI. 245 Schalk and Kopf v. Austria, no. 30141/04, § 58, ECHR 2010. 246 Charter of Fundamental Rights of the European Union (‘the Charter’). 247 Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 100, ECHR 2002-VI 248 See Schalk and Kopf v. Austria, no. 30141/04, § 60, ECHR 2010. See also Article 9 of the EU Charter on Fundamental Rights. Available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2007:303:0001:0016:EN:PDF 241

same-sex marriage was left to regulation by the national law of the member state249. Johnson notes that the Court’s judgment establishes that because Article 9 of the Charter permits (but does not require) EU states to grant same-sex couples access to the right to marry that, in the event of a state permitting same-sex marriage, the right to marry in Article 12 may be engaged250. Johnson disagrees with the many others who assert that the Court’s judgment in Schalk and Kopf v Austria established the applicability of Article 12 to same-sex couples. According to Johnson, the ECtHR did not explicitly state this, and has at best, ‘not ruled out’ the applicability of Article 12 to same-sex couples, rather than definitively establishing that Article 12 is applicable to same-sex couples251. Johnson’s view that the ECtHR has not definitively established the applicability of Article 12 to same-sex couples is also based on the ECtHR’s five-year jurisprudence following its decision in Schalk and Kopf v Austria. He notes that in X and Others v Austria252 the Court reiterated that ‘Article 12 of the Convention does not impose an obligation on the Contracting States to grant same-sex couples access to marriage’. The Court later again reiterated this in Hämäläinen v Finland253, stating that Article 12 is a lex specialis for the right to marry and that ‘it secures the fundamental right of a man and woman to marry and to found a family’. The Court also noted that ‘Article 12 expressly provides for regulation of marriage by national law’ and that ‘it enshrines the traditional concept of marriage as being between a man and a woman . . . ’ The Court concluded that ‘[w]hile it is true that some Contracting States have extended marriage to same-sex partners, Article 12 cannot be construed as imposing an obligation on the Contracting States to grant access to marriage to same-sex couples254. Johnson also observes that the ECtHR consistently adopts a ‘heteronormative’ approach to marriage255. According to Johnson this leads the Court to unquestioningly accept that reserving the ‘special status’ of marriage for heterosexuals does not amount to discrimination under Article 14 ECHR. Johnson argues that this gives contracting states an unlimited margin of appreciation to differentiate between opposite and samesex couples in respect of a wide range of legal rights256.

249

Schalk and Kopf v. Austria, no. 30141/04, § 61, ECHR 2010. Johnson, P., Is Article 12 of the European Convention on Human Rights applicable to same-sex couples ? Sexual Orientatoin Blog, May 8, 2015. Consulted at: http://europeancourts.blogspot.nl/2015/05/is-article-12-of-europeanconvention-on.html 251 Ibid. 252 X and Others v Austria, no. 19010/07, ECHR 2013. 253 Hämäläinen v. Finland, no. 37359/09, § 106, ECHR 2014. See also supra note 10. 254 Hämäläinen v. Finland, no. 37359/09, § 96, ECHR 2014. See also supra note 10. 255 Johnson 2012, 1146. See also: P. Johnson, “Challenging the Heteronormativity of Marriage:The Role of Judicial Interpretation and Authority” 2011(20) Social and Legal Studies 349. 256 Johnson 2012, 1149. 250

3.2.3 Article 14: Prohibition of Discrimination257 Article 14 ensures prohibition of discrimination in the enjoyment of all the rights and freedoms under the Convention, stating that: The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Article 14 ECHR has the limited scope of being an accessory (complementary) equality clause, applicable only in connection with the enjoyment of the other Convention rights, while it also has a very wide range as an open-formulated non-discrimination provision, which is not limited to an exhaustive list of discrimination grounds258. The Court can assess any possible unequal treatment: it is not necessary for an applicant to show that the disputed distinction is based on one of the explicitly named grounds in Article 14259. Consequently, Article 14 has also been applied in the protection of individuals from discrimination based on their sexual orientation260. To be justiciable before the Court, a difference in treatment must always relate to a substantive Convention right. However, since the Convention right can usually also be invoked on its own and almost any difference in treatment can be dealt with in that context, discrimination complaints usually do not add very much to the other allegations made261. The Court therefore seldom decides to deal with the Article 14 complaint262. The principle of non-discrimination enshrined in Article 14 has also been referred by the ECtHR as the principle of equality. Equal treatment is infringed only when a distinction has no ‘objective and reasonable justification’; a distinction is legitimate if it pursues a legitimate aim and is characterised by a reasonable relationship of proportionality between the means employed and the aim sought to be realised263. The Court has established that sexual orientation is a concept covered by Article 14, and 257

Article 1 of Protocol No. 12 to the Convention contains an independent general prohibition of discrimination. This article provides for a general prohibition of discrimination, expanding its reach beyond the rights set forth in the Convention. Arnardottir notes that on issues other than the clear difference in scope, it follows the same open structure of Article 14 and can be expected to be interpreted in line with the established interpretation of Article 14 Explanatory Report. Consulted at: http://conventions.coe.int/Treaty/EN/Reports/Html/177.htm Protocol No. 12 has been ratified by 18 of the 47 CoE member states. Consulted at: http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=177&CM=&DF=&CL=ENG 258 Arnardottir 2007, 14. 259 Gerards 2005, 111. 260 See, e.g. Salgueiro da Silva Mouta v. Portugal, no. 33290/96, § 28, ECHR 1999-IX. 261 Gerards 2013, 100 262 Ibid. 263 Renucci 2005, 19.

has held in many instances that, just like differences based on sex, differences based on sexual orientation require “particularly convincing and weighty reasons” by way of justification264. Where a difference in treatment is based on sex or sexual orientation the State’s margin of appreciation is narrow. However, member states enjoy a wide margin of appreciation in determining a difference in treatment that concerns “general measures of economic or social strategy”265. ‘Differences based solely on considerations of sexual orientation are unacceptable under the Convention'266.

264

X and Others v Austria, no. 19010/07, § 99, ECHR 2013. Gas and Dubois v. France, no. 25951/07, § 58, 60, ECHR 2010. 266 Vallianatos and Others v. Greece, § 77, ECHR 2013. See also X and Others v Austria, no. 19010/07, § 99, ECHR 2013 and Schalk and Kopf v. Austria, no. 30141/04, § 97, ECHR 2010. 265

CHAPTER 4

CASE COMPARISON ON SAME-SEX MARRIAGE

4.1 THE LANDMARK US SUPREME COURT CASE: OBERGEFELL V. HODGES 4.1.1 Background The US Supreme Court released its eagerly-awaited judgment on same-sex marriage in Obergefell v. Hodges267 on June 26, 2015. In a five-to-four vote268, the Supreme Court ruled that same-sex couples have the same fundamental right to marry, guaranteed by the Federal Constitution, as do opposite sex couples269. The Supreme Court upheld the claims brought by the petitioners – 14 same-sex couples and two men whose same-sex partners are deceased – and reversed the judgment of the Court of Appeals for the Sixth Circuit, which held that a State has no constitutional obligation to license samesex marriages or to recognise same-sex marriages performed out-of-State270. By this ruling, the Supreme Court essentially invalidated any State law that kept same-sex couples out of the civil institution of marriage271, making it possible for same-sex couples in the United States to exercise the fundamental right to marry in all fifty States272. The Supreme Court grounded its decision in the Fourteenth Amendment to the US Constitution, stating that State laws prohibiting same-sex couples to marry violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. The Supreme Court’s majority opinion prompted a wave of online support from millions of people around the globe reacting on social media273. Wade Henderson,

267

576 U. S. __(2015). The majority opinion was written by Justice Kennedy, joined by Justices Ginsburg, Breyer, Sotomayor and Kagan. There were four dissenting opinions written by Chief Justice Roberts and Justices Scalia, Thomas and Alito. There were no concurring opinions. 269 See lecture on the Supreme Court’s ruling given by Professor Chai Feldblum. Available at: http://www.cspan.org/video/?326826-1/discussion-supreme-court-ruling-samesex-marriage 270 Obergefell v. Hodges, 576 U. S. ___ (2015), p. 2 271 See supra note 16. 272 In 2003, Massachusetts became the first State in the United States to permit same-sex marriage, following the State’s Supreme Judicial Court’s ruling (Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941 (Mass. 2003). In 2012, there were only 7 states/cities in the United States where same-sex marriage was legal. In 2015 – before the latest Supreme Court ruling – there were 35 States that allowed same-sex couples to legally marry and over 70% of US citizens were living in States where same-sex marriage was legally allowed. 273 To give an illustration: 26 million people filtered their social media profile picture with a rainbow flag and Twitter registered 33.000 tweets per minute at its peak, in reactions following the ruling. Justice Kennedy's final paragraph of the Supreme Court decision was heralded in news headlines as ‘beautiful’, ‘most important’ and ‘stunning’, with pictures of the integral text widely shared on the web. http://www.slate.com/blogs/the_slatest/2015/06/26/supreme_court_legalizes_gay_marriage_here_is_the_beautiful _last_paragraph.html http://www.buzzfeed.com/rachelzarrell/rainbows-rainbows-rainbows#.hp41N7018 A video from revelers at New York City's 2015 gay pride parade marvelously captures the last paragraph of the Supreme Court’s ruling. This video can be watched at: http://www.washingtonpost.com/posttv/national/to-justicekennedy-love-new-york/2015/06/29/37ae2a28-1e59-11e5-a135-935065bc30d0_video.html 268

president and CEO of The Leadership Conference on Civil and Human Rights274 called the ruling ‘one of the most important Supreme Court decisions in American civil and human rights jurisprudence’275. At the same time LGBT-rights advocates and their supporters celebrated the landmark decision, same-sex marriage opponents in the United States condemned the ruling and some are looking for ways to challenge the Supreme Court’s decision276. Some State officials also voiced resistance to complying with the Supreme Court's ruling277. In one of the four strong dissenting opinions, Chief Justice Roberts, called this ruling an ‘extravagant conception of judicial supremacy’278. The next paragraph takes a short look at the facts of this case, which was consolidated by the Supreme Court and became known as the case Obergefell v. Hodges. It incorporates three other cases – all involving same-sex couples seeking legal recognition of their fundamental right to marry: Tanco v. Haslam, De Boer v. Snyder and Bourke v. Beshear279. 4.1.2 The Facts of the Case The name Obergefell refers to the surname of widowers seeking Ohio’s recognition of their same-sex marriage performed in Maryland, by naming Obergefell as the surviving spouse on the deceased's death certificates280. The Supreme Court case carries this name, but it involves a total of 14 same-sex couples and two men whose same-sex partners are deceased. These couples filed suits in Federal District Courts in their home States: Michigan, Kentucky, Ohio, and Tennessee. They claimed that the respondent state officials violate the Fourteenth Amendment by denying them the right to marry or 274

The Leadership Conference on Civil and Human Rights is a leading coalition of more than 200 national organisations promoting and protecting the civil and human rights of all persons in the United States Consulted at: http://www.civilrights.org 275 http://www.c-span.org/video/?326826-1/discussion-supreme-court-ruling-samesex-marriage 276 http://www.npr.org/2015/06/27/418038177/for-same-sex-marriage-opponents-the-fight-is-far-from-over 277 Pursuant to Rule 44, Sup. Ct.R., parties have 25 days to file a petition for rehearing in a case. The Alabama Supreme Court issued a corrected order, inviting parties to submit motions or briefs addressing the effect of this decision. The corrected order can be consulted at: http://lawprofessors.typepad.com/files/alabama-supreme-courtcorrected-ruling.pdf . See also, an elected county clerk in Kentucky who refuses to issue marriage licenses to same-sex couples based on religious grounds: http://www.nytimes.com/2015/09/02/us/same-sex-marriage-kentucky-kimdavis.html?_r=0 278 Obergefell v. Hodges, 576 U. S. ___ (2015), p. 25 (Roberts, C.J,, joined by Scalia and Thomas, JJ., dissenting). 279 The Supreme Court consolidated these four cases and the petitions for ‘writs of certiorari’ were granted on January 16, 2015. 280 A record amount of amicus curiae briefs (147) have been submitted in the case Obergefell v. Hodges, supporting petitioners. Including the so-called ‘People’s Brief’ signed by over 200.000 people and organised by the Human Rights Campaign. The ‘People’s Brief’ can be consulted at: http://hrc-assets.s3-website-us-east1.amazonaws.com//files/assets/resources/thepeoplesbrief.pdf Rule 37.1 of the Rules of the SCOTUS states that an amicus brief which brings to the attention of the Court ‘relevant matter not already brought to its attention by the parties’, ‘may be of considerable help to the Court’. Rules of the Supreme Court of the United States, 2013, Consulted at: http://www.supremecourt.gov/ctrules/2013RulesoftheCourt.pdf

to have their marriages lawfully performed in another State given full recognition. The four States involved define marriage as a union between one man and one woman. Each District Court ruled in petitioners’ favor. However, the U.S. Court of Appeals for the Sixth Circuit, after having consolidated the cases, reversed; ruling against the petitioners, and reinstating the State bans on same-sex marriage. The ruling determined that States do not violate the Constitution by prohibiting same-sex marriage, and that the political process rather than the judiciary is the proper place for accomplishing such a change281. The respondents are State officials responsible for enforcing the laws in question282. The following paragraph gives a chronological analysis of the Supreme Court’s thirtyfour page majority opinion, so as to unfold not just its content, but also this American court’s style of reasoning. The majority opinion was penned by the moderateconservative Justice Kennedy; well-known for his lack of ideological rigidity. Justice Kennedy casted the determining swing vote in this case. The majority opinion was joined by the four liberal Justices: Ginsburg, Breyer, Sotomayor and Kagan.283 4.1.3 Majority Opinion284 The Supreme Court started with an introduction to its opinion, stating that ‘the Constitution promises liberty to all within its reach’, and that this liberty includes ‘certain specific rights that allow persons, within a lawful realm, to define and express their identity’285, and that petitioners are seeking to find this liberty, ‘by marrying someone of the same sex and having their marriage deemed lawful on the same terms and conditions as marriages between opposite sex couples’286. It further depicted the origin of the cases followed by what the petitioners claimed, namely that the States involved violated the Fourteenth Amendment by denying them the right to marry or the full recognition of their marriages, lawfully performed in another State287. The Supreme Court also recalled that it had granted review around two fundamental questions. The first question: Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex ? And, the second question: 281

Consulted at: http://www.ca6.uscourts.gov/opinions.pdf/14a0275p-06.pdf Obergefell v. Hodges, 576 U. S. ___ (2015), p. 25. 283 All, except for Justice Kennedy are Democratic appointees. Justice Kennedy is well-known for being a crucial swing voter due to his lack of ideological rigidity. Consulted at: http://www.supremecourt.gov/about/biographies.aspx 284 The majority opinion is preceded by a ‘Syllabus’, which is not a part of the official main opinion. It is a kind of summary provided by the Supreme Court to assist the reader in better understanding the case and the decision. Consulted at: http://www.americanbar.org/content/dam/aba/images/public_education/Reading-SCOTUSOpinion.pdf 285 Obergefell v. Hodges, 576 U. S. ___ (2015), p. 1-2. 286 Obergefell v. Hodges, 576 U. S. ___ (2015), p. 2. 287 Obergefell v. Hodges, 576 U. S. ___ (2015), p. 2. 282

Does the Fourteenth Amendment require a state to recognise a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-ofState ?288 The Supreme Court’s majority opinion consisted of four parts: i. an 8-page analyis of the history and development of marriage and same-sex marriage289, ii. application of the Due Process Clause of the Fourteenth Amendment, which includes a discussion of the four principles and traditions demonstrating that the reasons marriage is fundamental under the Constitution apply equally to same-sex couples290, and iii. application of the Equal Protection Clause of the Fourteenth Amendment. In addressing the historical background of marriage, the Supreme Court considered the history of marriage to not only affirm its centrality, but to also demonstrate that marriage has evolved over time291. The Court further affirmed that an enduring part of the judicial duty to interpret the Constitution is the identification and protection of fundamental rights292: ‘The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning293’. The Supreme Court continued with a discussion of four principles upon which its relevant precedents are based. Firstly, the right to personal choice regarding marriage is inherent in the concept of individual autonomy294. Secondly, the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals295. Thirdly, protecting the right to marry safeguards children and families, and thus draws meaning from related rights of childrearing, procreation, and education296. Fourthly, the Supreme Court’s cases and the Nation’s traditions make clear that marriage is a keystone of American social order297. 288

Obergefell v. Hodges, 576 U. S. ___ (2015), p. 2-3. See also: http://www.supremecourt.gov/orders/courtorders/011615zr_f2q3.pdf The audio recordings of oral arguments presented in this case on April 28, 2015 are also available on the website of the US Supreme Court at: http://www.supremecourt.gov/oral_arguments/audio/2014/14-556-q1 289 Obergefell v. Hodges, 576 U. S. ___ (2015), p. 3-10. 290 Obergefell v. Hodges, 576 U. S. ___ (2015), p. 10-19. 291 Obergefell v. Hodges, 576 U. S. ___ (2015), p. 6. 292 Obergefell v. Hodges, 576 U. S. ___ (2015), p. 10. 293 Obergefell v. Hodges, 576 U. S. ___ (2015), p. 11. 294 Obergefell v. Hodges, 576 U. S. ___ (2015), p.12. 295 Obergefell v. Hodges, 576 U. S. ___ (2015), p.13. 296 Obergefell v. Hodges, 576 U. S. ___ (2015), p.14. 297 Obergefell v. Hodges, 576 U. S. ___ (2015), p.14.

The Supreme Court subsequently went on to the application of the Equal Protection Clause of the Fourteenth Amendment, stating that the right of same-sex couples to marry is also derived from that Amendment’s guarantee of the equal protection of the laws298. In this regard the Court pointed out that the Due Process and the Equal Protection Clauses are connected in a profound way, even though they set forth independent principles299. The Court explained the existing dynamic connection between the two clauses – liberty and equality — arriving to the conclusion that ‘the right to marry is a fundamental right inherent in the liberty of the person, and that ‘under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty’300. The Court further asserted that it was the Supreme Court’s duty to address same-sex marriage claims and to answer the relevant questions, noting that it had granted review to determine whether same-sex couples may exercise the right to marry, precisely because of an impermissible geographic variation in the meaning of federal law301. It continued with the remark that the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights302. In addition, the Court highlighted the importance of the Supreme Court’s role as the guarantor of fundamental individual rights, stating that ‘[t]he dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act. The idea of the Constitution “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts’. [. . .] ‘This is why “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections” ’.303 The Supreme Court concluded its majority opinion by expressly reversing the judgment of the Court of Appeals of the Sixth Circuit, with its closing sentence: ‘it is so ordered’304.

298

Obergefell v. Hodges, 576 U. S. ___ (2015), p.19. Obergefell v. Hodges, 576 U. S. ___ (2015), p.19. 300 Obergefell v. Hodges, 576 U. S. ___ (2015), p. 22. 301 Obergefell v. Hodges, 576 U. S. ___ (2015), p.26. 302 Obergefell v. Hodges, 576 U. S. ___ (2015), p.24. 303 Obergefell v. Hodges, 576 U. S. ___ (2015), p. 24. 304 Obergefell v. Hodges, 576 U. S. ___ (2015), p. 28. 299

Commentators point out that the Supreme Court should have held a strong equal protection opinion by declaring sexual orientation as a new suspect classification under the equal protection clause, thereby giving LGBT individuals protection beyond the right to marry305. Others accentuate the signficance of recognising this right as a liberty interest under the substantive due process clause, making it a fundamental right that is extremely difficult for the government to infringe upon. It is also important to close this case analysis with the statement that the American gay rights movement, considered as the new civil rights movement, also played an important role in influencing the Supreme Court’s approach to equality306. Not only through preceding strategic litigation on state level, but also through well-organised efforts in swaying public opinion. A number of such organisations also joined with amicus briefs presented in this case307. The next paragraph gives a very brief overview of the four dissenting opinions to the Obergefell ruling. 4.1.4 Dissenting Opinions Each of the four conservative308 Justices (Chief Justice Roberts, and Justices Scalia, Thomas and Alito) penned a dissenting opinion centered around two main objections regarding the Supreme Court’s role and the constitutional protection of liberty. In essence, they argue that the Supreme Court should leave the decision on same-sex marriage to the individual States; writing that the Supreme Court is overstepping its role. In this respect, Chief Justice Roberts notes that the majority of the Supreme Court should exercise restraint, but instead it ‘exalts the role of the judiciary in developing social change’309. Justice Roberts maintains that the decision should be reached through the democratic process, and that the majority ruling is cutting off an ongoing political debate, expounding that ‘[h]ere and abroad, people are in the midst of a serious and thoughtful public debate on the issue of same-sex marriage. They see voters carefully considering same-sex marriage, casting ballots in favor or opposed, and sometimes changing their minds. They see political leaders similarly reexamining their positions, and either reversing course or explaining adherence to old convictions confirmed anew. They see governments and businesses modifying policies and practices with respect to same-sex couples, and participating actively in the civic discourse. They see countries overseas democratically accepting profound social change, or 305

Consulted at: http://harvardlpr.com/2015/06/26/gay-rights-wins-small-not-big-at-the-supreme-court/ For a brief historical overview of the court-based approach of the American gay rights movement, see ‘Gay Rights and the Supreme Court: The Early Years’, Marc Stein. Consulted at: http://uncpressblog.com/2010/10/04/gay-rightsand-the-supreme-court/ 307 See supra note 280. 308 All are Republican appointees. Consulted at: http://www.supremecourt.gov/about/biographies.aspx 309 Obergefell v. Hodges, 576 U. S. ___ (2015), p. 24 (Roberts, C.J,, joined by Scalia and Thomas, JJ., dissenting). 306

declining to do so. This deliberative process is making people take seriously questions that they may not have even regarded as questions before’310. As for their disagreement with the majority opinion on the constitutional protection of liberty, the dissenters state that same-sex marriage is not a form of liberty protected under the due process clause. With respect to this, Justice Thomas remarks that the majority opinion is imposing the personal view of five unelected Justices as to the fundamental rights protected by the Constitution311. On the same point, Justice Alito notes that the Court’s holding has been that ‘liberty’ under the Due Process Clause should be understood to protect only those rights that are ‘deeply rooted in this Nation’s history and tradition’, and that it is ‘beyond dispute that the right to same-sex marriage is not among those rights’312. The dissenters ground their opinions on the writings of the Framers of the Constitution, reflecting an originalist approach to interpreting the Constitution.

4.2. THE GROUND-BREAKING RULING OF THE ECtHR: OLIARI & OTHERS V. ITALY 4.2.1 Background The judgment in the most recent decision of the ECtHR regarding same-sex marriage claims came with considerably less media attention than the decision of its American counterpart issued a few weeks earlier313. Mainly because in the case of Oliari and Others v. Italy314 the Strasbourg Court – once again – did not decide in favor of recognising an obligation for all member states to grant same-sex couples access to marriage. The applications in this case came from three male same-sex couples consisting of 6 Italian men, who invoked Articles 8, 12, and 14 ECHR and complained that the inability to get married or to have access to any legal recognition of their union constituted a discrimination based on sexual orientation.

310

Obergefell v. Hodges, 576 U. S. ___ (2015), p. 26 (Roberts, C.J,, joined by Scalia and Thomas, JJ., dissenting). Obergefell v. Hodges, 576 U. S. ___ (2015), p. 2 (Thomas, J., joined by Scalia J., dissenting). 312 Obergefell v. Hodges, 576 U. S. ___ (2015), p. 2 (Alito, J., joined by Scalia and Thomas, JJ., dissenting). 313 Less than two weeks away from a self-imposed deadline for this thesis – on July 21, 2015 – the Strasbourg Court issued its ruling in one of three cases initially classified under ‘forthcoming rulings’ in paragraph 4.2.3 of this thesis. This resulted in a last-minute and drastic adaptation: focusing solely on the two most recent American and European rulings as the central decisions for comparison. 314 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, ECHR [Fourth Section], 2015. 311

The news headlines turned attention to the celebrated part of the ruling in which the seven-judge chamber of the ECtHR315 unanimously found Italy to be in violation of the ECHR, by failing to provide some type of legal framework for recognition and protection of same-sex unions316. Even though the Oliari ruling of the ECtHR did not accept marriage as a fundamental right for same-sex couples under its jurisdiction, and despite the fact that its wider implications remain uncertain, commentators consider this decision as a welcome step forward in the advancement of human rights of samesex couples317. On his ‘ECHR Sexual Orientation Blog’, Professor Johnson called the Court’s ruling a ‘ground-breaking judgment of the European Court of Human Rights’.318 So did ILGA-Europe319; ILGA-Europe’s Co-Chair reacted with the hope that ‘this judgment will speed up the process of legal recognition of same-sex unions not only in Italy, but also in other 22 countries of the Council of Europe which currently do not legally acknowledge same-sex unions’320. The Court’s latest decision321 is considered an important development in the steady stream of case law involving samesex couples, as it is the first time that the ECtHR acknowledges the right of same-sex unions to be legally recognised; the Court’s ruling is also expected to set an important benchmark for other member states currently failing to ensure an available legal framework that provides for the recognition and protection of same-sex unions. The concurring opinion to the Court’s judgment expressed this aspect as its difference in reasoning with the judgment, noting that the Court’s argumentation is likely to generate a positive obligation on any member state to provide a legal framework for same-sex unions322.

315

Chamber of the Fourth Section of the ECtHR. A Section is an administrative entity, while a Chamber is a judicial formation of the Court within a given Section. The ECtHR has five Sections in which Chambers are formed. A chamber is composed of seven judges, and includes the Section President, the ‘national judge’ (the judge with the nationality of the State against which the application is lodged) and other judges. Consulted at: http://www.echr.coe.int/Pages/home.aspx?p=court/judges&c=#newComponent_1346152041442_pointer 316 Other newssites erroneously reported Italy was found to be in violation of human rights by blocking gay marriage; see e.g. ANSA, ‘Strasbourg denounces Italy on Same Sex Marriage’, Consulted at: http://www.ansa.it/english/news/2015/07/21/strasbourg-denounces-italy-on-same-sex-marriage-4_501ea9c2-9e9f4461-bc37-df821a4c3898.html ‘Italy breaches Human Rights by blocking Gay Marriage: European Court’, The Citizen. Consulted at: http://citizen.co.za/afp_feed_article/italy-breaches-human-rights-by-blocking-gay-marriage-european-court/; ‘Italy breaches Human Rights by blocking Gay Marriage: European Court’, Business Insider. Consulted at: http://www.businessinsider.com/afp-italy-breaches-human-rights-by-blocking-gay-marriage-european-court-2015-7 317 See Johnson, Paul, Ground-breaking judgment of the European Court of Human Rights in Oliari and Others v Italy: samesex couples in Italy must have access to civil unions/registered partnerships, ECHR Sexual Orientatoin Blog, 21 July 2015. Consulted at: http://echrso.blogspot.com/2015/07/ground-breaking-judgment-of-european.html 318 Ibid. 319 ILGA-Europe, the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), is an international non-governmental umbrella organisation bringing together 422 organisations from 45 European countries. Consulted at: http://www.ilga-europe.org/who-we-are/what-ilga-europe 320 Consulted at: http://www.ilga-europe.org/resources/news/latest-news/ecthr-italy-recognition-july-2015 321 Before this decision becomes final, Italy may request review by the Grand Chamber. (Article 43 ECHR). 322 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 10 (concurring opinion) ECHR 2015.

The following paragraph looks at the facts of this case, which originated in two separate applications lodged with the Court on March 21 and June 10, 2011 respectively. These applications were joined by the Court, in what is now known as the Oliari case. 4.2.2 The Facts of the Case Couple #1: Mr Oliari and Mr A. In July 2008, Mr Oliari and Mr A., who were in a committed stable relationship, requested the Trent Commune Civil Status Office to issue the relevant marriage banns323. Their request was rejected and the two applicants challenged the decision before the Trent Tribunal, arguing that Italian law did not explicitly prohibit marriage between two persons of the same sex, and that even if that were the case, such a position would be unconstitutional324. The Tribunal denied their claim, noting that the Civil Code established the requirement that spouses be of the opposite sex to get married325. Following the Tribunal’s rejection, the applicants appealed to the Trent Court of Appeal, which made a referral to the Constitutional Court in connection with the claims of unconstitutionality of the relevant law326. In April 2010, the Constitutional Court declared the applicants’ constitutional challenge inadmissible327, by concluding that the Italian constitutional norm guaranteeing the right to marry did not extend to same-sex unions and was intended to refer to marriage in its traditional sense328. In September 2010, the Court of Appeal rejected the applicants’ claim based on the Constitutional Court’s judgment329. Couple #2: Mr Felicetti and Mr Zappa In February 2011, Mr Felicetti and Mr Zappa, who had been living together as a couple for over five years, requested their marriage banns to be issued330. In April 2011 their request was rejected based on the relevant law and jurisprudence331. In view of the Constitutional Court’s preceding ruling in the case of Mr Oliari and Mr A., the applicants refrained from seeking any legal remedies as this was deemed to be ineffective332.

323 Banns are public announcements of a person's intention to marry. In Italy, before a marriage can take place, the banns must be posted by a civil registrar. 324 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 12, ECHR 2015. 325 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 13, ECHR 2015. 326 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 14, ECHR 2015. 327 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 15, ECHR 2015. 328 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 17, ECHR 2015. 329 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 19, ECHR 2015. 330 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 23, ECHR 2015. 331 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 23, ECHR 2015. 332 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 24, ECHR 2015.

Couple #3: Mr Perelli Cippo and Mr Zacheo In November 2009, Mr Perelli Cippo and Mr Zacheo, who had been living together for over ten years, requested their marriage banns to be issued333. Their request was rejected two days later on the basis of the relevant law and jurisprudence334. The applicants challenged the rejection before the Milan Tribunal335. A month later, their claim was also denied by the Milan Tribunal336. The applicants regarded lodging a further challenge as ineffective in consideration of the aforementioned judgment of the Constitutional Court337. The three couples lodged complaints with the ECtHR, stating that Italian law did not allow them to get married or enter into any type of civil union, and that they were thus being discriminated against based on their sexual orientation338. They alleged violations of Article 8 alone and Article 14 in conjunction with Article 8, and of Article 12 alone, and Article 14 in conjuction with Article 12339. The next paragraph gives a chronological analysis of the Strasbourg Court’s sixty-sevenpage judgment, so as to unfold not just its content, but also this European human rights court’s style of reasoning. 4.2.3 The Court’s Judgment After recounting the facts of the case, the Court looked extensively at the domestic procedural history by examining the relevant domestic law of Italy and international law and practice. As for the applicable domestic law, the Court pointed out that Italian law does not allow same-sex couples to contract marriage340. The Court also noted that cohabitation agreements are not specifically provided for in Italian law341 — observing that the presently available “cohabitation agreement” does not have a specified legal form and can essentially be considered as a private deed regulating financial aspects, and which may not be entered into by married couples342. It further stated that Italian law does not provide for any alternative union to marriage, either for homosexual

333

Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 28, ECHR 2015. Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 29, ECHR 2015. 335 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 30, ECHR 2015. 336 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 31, ECHR 2015. 337 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 32, ECHR 2015. 338 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 3, ECHR 2015. 339 Eight organisations intervened as third parties by submitting written observations; all are human rights and LGBT-rights organisations. 340 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 34, ECHR 2015. 341 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 34, ECHR 2015. 342 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 41, ECHR 2015. 334

couples or for heterosexual ones, leaving same-sex couples with no means of recognition343. The Court went on by considering the case law of the Italian Constitutional Court. According to the Constitutional Court, the absence of same-sex marriage was not incompatible with existing local and international laws344. The Constitutional Court further upheld that same-sex couples had to be protected under the Italian Constitution, but that it was up to the legislature to take action to ensure same-sex unions345. The Constitutional Court concluded that the issue at the heart of the problem was the lack of any other available legal union, apart from marriage346. The Court further identified recent and current Italian legislation, indicating that a unified Bill concerning all the relevant legal proposals had been adopted by the Senate pending amendments and its presentation to Parliament347. A motion to favour the approval of a law on civil unions was also adopted, with particular consideration for same-sex couples348. After summarising the Italian remedies system, the Court proceeded by expounding the comparative and European law and practice; noting that eleven member states now recognise same-sex marriage, with an additional two member states having recently approved the legalisation of same-sex marriage349. It further remarked that eighteen member states allow some form of civil partnership for same-sex couples, while four member states had abolished registered partnership in favour of same-sex marriage350. The Court concluded that there are presently twenty-four countries out of the fortyseven CoE member states that have already enacted legislation permitting same-sex couples to have their relationship recognised as a legal marriage or as a form of civil union or registered partnership351. The Court continued by delving into applicable CoE material (PACE352 Recommendations and PACE Resolutions) as well as European Union law353. Closing its comparative observations with an outline of the US case Obergefell v. Hodges354. 343

Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 42, ECHR 2015. Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 45, ECHR 2015. 345 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 45, ECHR 2015. 346 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 45, ECHR 2015. 347 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 47, ECHR 2015. 348 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 47, ECHR 2015. 349 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 53, ECHR 2015. 350 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 54, ECHR 2015. 351 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 55, ECHR 2015. 352 Parliamentary Assembly of the Council of Europe. 353 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 56-64, ECHR 2015. 354 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 65, ECHR 2015. 344

After dismissing preliminary objections by the Italian Government355, the Court considered the complaints to fall under examination of Article 8 alone and Article 14 in conjunction with Article 8356. The Court then went on to declare the complaints admissible357 by reiterating that relationships of same-sex couples indisputably fall within the notion of ‘private life’, while relationships of cohabiting same-sex couples fall within the notion of ‘family life’358 within the meaning of Article 8. Prior to arriving at its assessment, the Court also extensively described the views submitted by all the Parties involved, consisting of applicants, the Italian Government and third-party interveners359. The applicants claimed, briefly stated, that Italy had not fulfilled its positive obligations under the ECHR, by failing to provide some type of institution for same-sex couples360. The Italian government, on the other hand, was of the opinion that it did not have a legal obligation under the ECHR to provide for same-sex unions361, and that due to the social and cultural sensitivities of this issue, member states enjoy ‘a wide margin of appreciation in the choice of the times and modes of a specific legal framework’362. The Court’s assessment consisted of : i. general principles, ii. recent and relevant case law, and iii. application of the general principles to the present case. After first recalling the relevant general principles and factors applicable when assessing a member state’s obligations under the Convention363, the Court went on to recall its most recent and relevant case law on the issue at hand, by reaffirming two main aspects. First, the area in question is one of evolving rights with no established consensus, where member states enjoyed a margin of appreciation in the timing of the introduction of legislative changes364. Second, Article 14 in conjunction with Article 8 did not impose an obligation on member states to grant same-sex couples access to marriage365. The ECtHR subsequently determined that the question to be resolved was whether Italy had failed to comply with a positive obligation to ensure respect for the applicants’ private and family life, in particular through the provision of a legal framework

355

Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 66-98, ECHR 2015. Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 100, ECHR 2015. 357 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 104, ECHR 2015. 358 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 103, ECHR 2015. 359 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 105-158, ECHR 2015. 360 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 105, ECHR 2015 361 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 122, ECHR 2015. 362 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 123, ECHR 2015. 363 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, §159-162, ECHR 2015. 364 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 163, ECHR 2015. 365 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 163, ECHR 2015. 356

allowing them to have their relationship recognised and protected under domestic law366. The Court considered that in the absence of marriage, same-sex couples like the applicants have a particular interest in obtaining the option of entering into a form of civil union or registered partnership, since this would be the most appropriate way in which they could have their relationship legally recognised and which would guarantee them the relevant protection. Such a protection should provide for the in the core needs of comitted sames-sex couples – without unnecessary hindrance367. The Court further emphasised that it has already held that such civil partnerships have an intrinsic value for persons in the applicants’ position, irrespective of the legal effects, however narrow or extensive, that they would produce368. The Court also noted that this recognition would further bring a sense of legitimacy to same-sex couples369. Considering that there was no prevailing community interest put forward by the Italian Government, against which to balance the applicants' momentous interests . . . and in the light of domestic courts' conclusions on the matter which remain unheeded, the Court further found Italy to have overstepped its margin of appreciation and to have failed to fulfil its positive obligation to ensure an available specific legal framework providing for the recognition and protection of the applicants’ same-sex unions'370. The Court continued by restating its standpoint held with regard to Article 12 in previous cases, namely that same-sex marriage was left to regulation by the national law of the member states and that the Court did not feel it should rush to substitute its own judgment in place of that of the national authorities, who are best placed to assess and respond to the needs of society371. The Court noted in this regard, that despite the gradual evolution of member states on the matter (today there are eleven CoE states that have recognised same-sex marriage), it still considered the findings reached in the cases mentioned to be pertinent372. Based on this, the Court reiterated what it had continously upheld, namely that Article 14 in conjunction with Article 12 cannot be interpreted as imposing an obligation on

366

Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 164, ECHR 2015. Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 174, ECHR 2015. 368 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 174, ECHR 2015. 369 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 174, ECHR 2015. 370 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 185, ECHR 2015. 371 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 192, ECHR 2015. 372 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 192, ECHR 2015. 367

member states to recognise same-sex marriage373. It therefore rejected the complaint under Article 12 alone and in conjunction with Article 14 374. Finally, the Court concluded its judgment by stating that it unanimously held a violation of Article 8 ECHR. 4.2.4 Concurring Opinion The concurring opinion in the Oliari case, penned by Judge Mahoney (United Kingdom) and joined by Judges Tsotsoria (Georgia) and Vehabović (Bosnia and Herzegovina)375, agreed with the Court’s judgment in that there had been a violation of Article 8 ECHR, yet grounded this standpoint on a different – narrower reasoning – restricted to the legal situation in Italy376. The narrower ground posed by the separate opinion, refers to the application of the existing classic analysis under paragraph 2 of Article 8 ECHR, instead of the Court’s analysis in terms of failure to fulfil a positive obligation under the Convention. In this respect, the concurring opinion also deferred with the Court’s reasoning by which it established Italy’s failure to fulfil a positive obligation, arguing that while the judgment is indeed careful to limit its finding of the existence of a positive obligation to Italy – by grounding this on reasons not necessarily found in all member states377 – it is not even sure if ‘such a limitation of a positive obligation under the Convention to local conditions is conceptually possible’378. Moreover, the concurring opinion pointed out that the Court also appeared to have relied on general obligations, not particular to Italy379. According to the concurring Judges, this could likely give rise to a free-standing positive obligation on any member state to provide a legal framework for same-sex unions380.

373

Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 193, ECHR 2015. See also Schalk and Kopf v. Austria, no. 30141/04, ECHR 2010 and Gas and Dubois v. France, no 25951/07, 31, ECHR, 2010. 374 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 193, ECHR 2015 375 Consulted at: http://www.echr.coe.int/Pages/home.aspx?p=court/judges&c=#n1368718271710_pointer 376 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 1 (concurring opinion) ECHR 2015. 377 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 10 (concurring opinion) ECHR 2015. 378 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 10 (concurring opinion) ECHR 2015. 379 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 10 (concurring opinion) ECHR 2015. 380 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 10 (concurring opinion) ECHR 2015.

CHAPTER 5

CONCLUSION

5.1 COMPARATIVE RESEARCH SUMMARY The comparative legal exploration conducted in this thesis was prompted by the recently announced and much-awaited ruling of the US Supreme Court in the landmark case Obergefell v. Hodges. By making use of a comparative approach so as, in the words of Justice Ginsburg, not to become losers by neglecting what others can tell us about endeavors to eradicate bias; this thesis looked at how the US Supreme Court and the European Court of Human Rights approach comparable human rights claims made by same-sex couples to gain equal access to legal marriage. It also provided insight into the two distinctive legal and historical contexts shaping each system’s supreme legal instrument, and each court’s role and self-identity. The two supreme legal instruments being interpreted by the two courts considered in their respective legal systems, both reflect a departure with tyrannical rule, but were created with different purposes in mind: one as an instrument of peace, the other as a constitutional document. The ECHR is the supreme legal instrument of the European human rights system known as the Council of Europe, which protects fundamental rights as rights of all human beings, including non-nationals, within the jurisdiction of its member states. Originating from the traumatic experience of opression and extermination of the Second World War, the CoE was set up to attain greater unity among its member states with the main purpose of protecting their shared fundamental values. To support the collective enforcement of human rights in Europe, the ECHR was initially adopted by ten Western European governments, sixty-one years ago. It evolved to become a modern bulwark against human rights violations and a prerequisite for democratic European societies, widening its jurisdiction to 47 member states, encompassing Central and Eastern Europe. The ECHR has been repeatedly expanded since its creation, by a number of ‘protocols’ which have been added over the years; the most recent one in 2013. By contrast, the US Constitution is the supreme legal text of the American constitutional system, which guarantees fundamental rights exclusively as the constitutional rights of citizens within its jurisdiction, while also providing the creation and separation of power over the three main national government branches as well as between the Federal and State Governments. The US Constitution has endured over two centuries, and was chosen by American citizens, originating from colonial oppression. More specifically, the Fourteenth Amendment to the Constitution, which established due process and equal protection clauses, represented one of the most important constitutional changes in American history. As a direct result of the American Civil War, and as part of the so-called Reconstruction Amendments, it was originally adopted to protect former slaves in the South, but later 49

evolved into a powerful instrument ensuring that State laws operate equally for all Americans, and guaranteeing protection against government interference with basic rights. The American Constitution is entrenched and particularly difficult to amend, requiring elaborate procedures, and it has not been changed since its last Amendment in 1992. The two courts were regarded as functionally equivalent for the purpose of comparison: both viewed on the level of their functions, as the highest authoritative interpreters of human rights norms in their respective jurisdictions. However, as has been brought to light, these two judicial organs are inherently dissimilar: one is a national supreme court in an American constitutional system, the other is a supranational court in a European human rights system. One interprets and applies an entrenched federal constitution, the other interprets and upholds an international human rights agreement between governments of sovereign states. Even though both legal documents contain human rights provisions that provide protection against government encroachment, a national constitution is fundamentally different to a human rights treaty. As imparted, the American constitutional system took over 200 years to develop. It therefore reflects America’s deepest layers of legal history, tradition and mentalité, providing a legitimate entrenchment of the most fundamental American values. Partly because of its entrenchment, the Supreme Court plays a crucial role as the highest authoritative interpreter of the national constitution. It is through the Supreme Court’s judicial interpretation of the Fourteenth Amendment to the Constitution that the most important constitutional changes have occurred, by evolving the rights protected, and effectively establishing the promised equality through its power to invalidate legislation or executive actions it considers to be in conflict with the Constitution. Unlike the US Supreme Court, the ECtHR was created as part of a European human rights system, to interpret and ensure compliance with the European Convention on Human rights. Its role as a supranational court is to review individual applications lodged against member states with great cultural and legal diversity, and to issue judgments that are binding on the respondent member states concerned. Notwithstanding their divergence in origin and role, the two courts and their respective legal systems also have a lot in common: both courts are internationally influential high courts in systems that share a commitment to similar values such as the rule of law, democracy, and a respect for human rights as reflected in both system’s legal provisions protecting comparable fundamental rights, albeit in slightly different ways. The European human rights system provides a textual provision for the right to marry in Article 12 ECHR, but interference with the enjoyment of the right to marry is not subjected to a necessity clause. The reference to ‘national laws’ in this article gives member states a wide discretion to regulate marriage in their own domestic laws, as 50

long as there is no impairment of the right’s essence. In contrast, the American system does not mention the right to marry in the text of the Constitution. This right was recognised by the Supreme Court as a fundamental right under the liberty of the due process clause. Moreover, in the American system, a government interference in this fundamental right is only justifiable if it can meet the test of strict scrutiny. This allows for a much narrower government discretion. As for equality, both legal systems express an explicit commitment to the need of protecting the principle of non-discrimination by prohibiting unjustified distinctions, but differ in the way this is given shape. In the American system, the Fourteenth Amendment provides a general protection against discrimination, which also includes unenumerated rights. It represented an important promise of America’s strive against discrimination, and through the Supreme Court’s reinvigorate interpretation of particularly the due process and equal protection clauses, this provision developed into the major constitutional provision to which minorities appealed in seeking to expand their legal rights. In regard to fundamental rights, both clauses bring about the same outcome, subjecting government infringements to strict scrutiny. The European system, on the other hand, grants a more limited protection through its current non-discrimination provision articulated as an accessory right in Article 14 ECHR, which is only applicable to the exercise of other Convention rights. Protocol No. 12 to the ECHR removes this limitation by introducing a freestanding right that provides for a general prohibition of discrimation. However, this Protocol has not yet been ratified by all CoE member states. The conducted comparison brought a number of interesting findings to light on the way human rights are protected when it comes to the issue of same-sex marriage. These findings are incorporated in the answers to the three research questions provided in the following paragraph.

5.2 RESEARCH ANSWERS The first research question posed at the beginning of this thesis was descriptive in nature, asking: What are the main similarities and differences in the two judicial approaches when dealing with the issue of same-sex marriage ? The review of judgments in the two recent cases revealed markedly different ways in which each court interprets its respective human rights norms, leading to divergent conclusions on a very same issue: the American judgment unequivocally established marriage equality for same-sex couples in all fifty states, while the European decision 51

specifically found a positive obligation to legal recognition of same-sex unions in one member state. It remains unclear to what extent it also entails an obligation for other member states currently lacking legal recognition of same-sex unions. One striking difference in approach between the two courts when dealing with same-sex couples seeking legal recognition of their right marry, is in their choice of provisions determined to be applicable. The ECtHR chooses not to deal with discrimination in connection with the right to marry. Even while applicants invoke the relevant provisions (Article 12 ECHR, protecting the right to marry and Article 14 ECHR, prohibiting discrimination). The ECtHR takes recourse instead to Article 8 ECHR, which only provides protection to same-sex couples in the enjoyment of their right to respect for private and family life. The American approach relies primarily on the Due Process Clause of the Fourteenth Amendment, which is a broad and open doctrine, that allows for the right to marry for same-sex couples to be protected as a liberty. The approach is however also partly grounded on the Equal Protection Clause, establishing a dynamic connection between liberty and equality that is applicable to same-sex marriage. In comparing the two provisions determined applicable by the two courts in their respective rulings, one similarity stands out. Both Article 8 ECHR and the Fourteenth Amendment are the most open-ended provisions of the respective supreme legal instruments, making them adaptable over time. Through their interpretation by the two courts, these provisions have evolved to cover a wide range of issues, hence extending protection of a variety of interests, including those of LGBT individuals, under the rights guaranteed by these provisions. The European provision covering the protection of same-sex relationships, the American provision covering the protection of same-sex marriage. The most notable difference in the two approaches presented above are reflected in the two courts’ contrasting judicial philosophies: one court exercises judicial restraint, while the other exerts judicial activism. In reaching divergent outcomes, the ECtHR can be said to take a more restrained judicial approach in interpreting the Convention, as demonstrated by its refusal to extend the protection of Article 12 of the Convention to include the obligation to recognise same-sex marriage, reiterating that it ‘felt it must not rush to substitute its own judgment in place of that of the national authorities’, preferring to follow existing legal and social trends in CoE member states, while waiting for an emerging European consensus on same-sex marriage. In contrast, the US Supreme Court adopts a more activist judicial approach, as echoed in statements such as ‘individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate 52

their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act’. By establishing that the Constitution grants same-sex couples the unenumerated fundamental right to marry protected by the Constitution, the Supreme Court judicially induces the desirable change, stonewalling the democratic process, thereby making sure this constitutional right is safeguarded for same-sex couples against suppression by a democratic majority. The chronological analysis of the two judicial judgments also unfolded very different styles of reasoning. The ECtHR takes a more concrete approach, while the Supreme Court reasons in a more abstract way. In its judgment the ECtHR balances all the relevant factors of the particular case with a considerable attention to the domestic procedural history. Its reasoning remains very concrete to the individual application at hand, gradually shifting a small step forward in finding a positive obligation under the Convention, while attempting to limit the outcome to the relevant circumstances in the respondent member state. The Supreme Court, on the other hand, is more abstract in its reasoning, making an elaborate reference to the general historical development of the issue of marriage itself, as well as the relevant precedents. Directly establishing marriage as a liberty to be equally enjoyed by same-sex couples under the Constitution. Inspite of their divergent outcomes, choice of provisions applied, judicial philosophies and judicial styles, when it comes to same-sex marriage, both high courts – to a certain extent – apply similar methods of reading their respective legal documents, as reflected by their acknowledgement of marriage being a constantly evolving concept, adjusting itself to changing social norms and values. This arises from the application of a similar dynamic interpretative principle, namely that of considering their supreme legal documents as living instruments; to be interpreted in light of evolving societal changes. Known as the theory of ‘living constitution’ in the American constitutional system and as the principle of ‘evolutive interpretation’ in the European human rights system. The second – explanatory – research question was phrased as follows: Why is Europe seemingly lagging behind, while the US has moved towards full marriage equality ? The American and European divergence in outcome on same-sex marriage, is the result of a number of influences, which are all interconnected. The first and main influence is connected with each court’s distinctive role in their respective legal systems. The second influential aspect is related to the central and unique importance of the relevant provision under which the American court established marriage equality. The third – closely linked to the second one – has to do with a difference in judicial ideology. 53

It has come to light that while both courts are hierarchically supreme in the judicial interpretation of human rights norms in their respective jurisdictions, the two courts fulfil fundamentally divergent roles. The core role of the ECtHR as a supranational court in the European human rights system of the CoE, is to provide subsidiary protection for individual applications by interpreting the Convention rights. In this system the ECtHR provides a supervision that is subsidiary to national safeguarding of human rights by local authorities who are considered as democratically legitimate. Being a supranational court interpreting the Convention for 47 sovereign member states with great cultural and legal diversity, makes it difficult for the ECtHR to develop its more constitutional role (although it also continues to evolve this role). This explains why the ECtHR Court is reluctant to impose a uniform human rights standard when it comes to controversial issues such as same-sex marriage. Hence, the current lack of protection of the right to marry for same-sex couples is a result of the challenges in finding the right balance between its core role of providing individual relief and in its emerging role in granting constitutional protection. This also explains its decision of leaving it as a matter for each member state to decide on the issue of same-sex marriage. As a constitutional court in the American federal system of checks and balances, the US Supreme Court has a fundamentally different role to fulfil. The American system is governed by an entrenched anti-majoritarian supreme legal document, making constitutional interpretation crucial. As such, the Supreme Court plays a vital role as the self-proclaimed supreme interpreter of constitutional rights, providing constitutional protection by making a strategic case selection through discretionary certiorari decisions. The American system of constitutional entrenchment of fundamental individual rights which are very difficult to change, requires the Supreme Court to articulate new rights under the Constitution. Throughout American history the Supreme Court played a key role in developing the Constitution, and as such there is an enduring American public belief in its legitimacy as the supreme interpreter of fundamental rights. The Supreme Courtâ&#x20AC;&#x2122;s American distinctivenes as a judicial body with a two-hundred-year history of being the legitimate authority interpreting Americaâ&#x20AC;&#x2122;s highest Law of the Land (and the worldâ&#x20AC;&#x2122;s oldest written Constitution), exercising an impressive and unique judicial power The second aspect influencing the divergence in outcome on the issue of same-sex marriage, is the central and unique importance of the Fourteenth Amendment. The American ruling in favor of same-sex marriage can only be understood in the legalhistorical context disclosing the origin and significance of the Fourteenth Amendment, without which same-sex marriage would not have become a reality in the United States. 54

By being directed at the States, this Amendment created a fundamental shift in the American federal system through which individual rights were protected against the States. This Amendment transformed the US Constitution into an instrument through which vulnerable minorities such as LGBT individuals could seek protection against State laws denying them the right to marry. Closely linked with the central importance of the Fourteenth Amendment under which the American court established the right to marry for same-sex couples as a constitutional right, is the influence of judicial ideology on the interpretation hereof. Unlike the European case, the outcome in the American case, on what is considered a controversial issue, can also be said to have been determined by the ideological composition of the Supreme Court. The majority opinion was closely divided and split along the Supreme Courtâ&#x20AC;&#x2122;s liberal and conservative camps â&#x20AC;&#x201C; with the four liberal Justices being in favour of same-sex marriage and a more activist role on the issue, and the four conservative Justices being against same-sex marriage, favouring a more restrained role for the court in the development of social and political change. It was the ideologically flexible Justice Kennedy that casted the determining swing vote. Had he supported the view of the conservative Justices, the outcome would have been against same-sex marriage, and along the line of the four dissenting opinions. The ideological composition and its influence on case outcomes, is the result of the political process by which Supreme Court Justices are appointed by the US president (with confirmation by the Senate), and whose choice is based on a shared ideology and the expectation that Justices tend to vote according to their ideological leanings. On the contrary, Judges of the ECtHR are generally not thought of in terms of their political leanings, as little is known about the political preferences guiding their judicial appointment. Although they are nominated by governments of their member states, they sit in their individual capacity, with their final selection and appointment made by the PACE. As for the third and final question formulated: What can Aruba learn from these two different paths ? This final exploratory question finds an answer in a local self-reflection, coupled with a call for civil discourse in the following two closing paragraphs.

. . . laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed and manners and opinions change with the change of circumstances, institutions must advance also and keep pace with the times." Thomas Jefferson to Samuel Kercheval, 1816. ME 15:4

5.3 SELF-REFLECTION (on the local path to marriage equality) It is a reality today that legal marriage still remains the most fundamental union that exists (before the law) to guarantee certain necessary rights and privileges for people operating as a family unit. A legal framework that not only offers significant legal protection, but also gives ultimate public recognition and a sense of legitimacy to a couple’s profound commitment to eachother. Given its central and basic importance, the right to marry is internationally considered as a fundamental human right. Inspite of a prevailing lack of international legal consensus, a growing number of respected international human rights scholars assert that the fundamental right to marry should be understood to include couples of the same sex. Yet even with all the current scholarly material in its support, the comparative dimension provided in this thesis showed that there exists a tension between the universal human right to marry and the local demands of a democratic majority, when it comes to its concrete application in the case of same-sex couples. Which of these two prevails, is answered differently in each system: the constitutionally established American federal system clearly favours the prevalence of a human right as interpreted by its highest national court; the European supranational human rights convention system believes the choice should be left to the determination of each member state’s domestic democratic majority, thereby – in my view – jeopardising the universal human rights of LGBT minorities under its jurisdiction. To be more specific: the Strasbourg Court holds that discrimination based solely on sexual orientation cannot be justified under the Convention. Yet, when it comes to the right to marry (Article 12 ECHR), it avoids considering the question of difference in treatment. Therefore, in my opinion, allowing precisely this kind of difference in treatment as lawful discrimination, by granting member states a prevailing wide margin of appreciation – in the case of same-sex marriage prohibition by certain member states, it essentially entails a discrimination based solely on sexual orientation – one that is motivated by religious convictions disguised as general measures of economic or social strategy. In the Oliari ruling the Court, once again, declined to provide an examination of an alleged discrimination based on sexual orientation, despite the fact that the couples claimed the only reason they could not get married was because of their sexual orientation. 56

Aruba currently does not give same-sex couples legal recognition of the fundamental right to marry. Same-sex marriage in Aruba is limited to an obligation to register samesex marriages carried out in other parts of the Kingdom of the Netherlands. It remains a sensitive issue, and the balance between the advancement of human rights for LGBT people and the local democratic process is not easy. But, it also depends in my opinion, on how one defines democracy. I believe a democracy is not merely what a governing majority dictates as law. The brief legal-historical background presented in this thesis depicted the transformation of democracies as a result of revolutionary and world wars, to go hand in hand with the rule of law and more importantly, with the protection of fundamental human rights of minorities. These can be considered as essential prerequisites for any contemporary society claiming to be a democracy. In a democracy ruled by law, it is the independent judiciary that serves as the ultimate authoritative guarantor of such fundamental rights, whenever the two other branches of government fail to protect these rights accordingly. In my view, and given the aforementioned, the current exclusion of a person from such a fundamental institution as that of marriage, merely based on religiously infused local custom, can no longer be considered as an acceptable justification. I agree with the American approach as formulated in the Obergefell case, which made it abundantly clear that religious moral disapproval alone, is not enough justificaton to restrict a personâ&#x20AC;&#x2122;s fundamental right to marry. Such an exclusion is not only discriminatory, but can in my opinion, also be regarded as a blatant denial of human dignity. Additionally, it is my belief that granting same-sex couples access to legal marriage in Aruba will go beyond establishing formal equality. It will send a powerful message of inclusion to everyone living on this island: namely that being gay in Aruba is okay; that being LGBT does not mean being a second rate citizen. That LGBT citizens are equally worthy of protection, respect, and dignity. Notwithstanding my own strong views on this issue, the kind of self-reflection I propose is not directly geared towards choosing one of the two examined judicial approaches; it can best be considered as a human rights mirror in which we might see a renewed reflection of our own approach to the issue of same-sex marriage in our particular legal and historical context. A local self-reflection which might help rid ourselves of what Eberle calls our built-in native bias, and widen our perspective. In this light, the proposed fortification of the heteronormativity inscribed in Arubaâ&#x20AC;&#x2122;s current legal definition of marriage can be considered as a step back. And given the conservative viewpoint expressed by the Prime Minister, the political sensitivity of this issue, and the lack of organised local gay/human rights activism, it is unlikely that the current majority will change its point of view to take a stand in support of equal access 57

to marriage, by amending the presented Bill. Thusly, ignoring a democratic opportunity to lead an open and convincing debate on: i. the importance of shedding built-in religiously animated local bias, ii. the importance of respecting and protecting fundamental rights, iii. and the importance of autonomously granting same-sex couples the fundamental right to marry in Aruba. As for the local impact of the two most recent transatlantic rulings: the ECtHR’s ruling against Italy in the Oliari case is likely to have a legal influence on Aruba, considering that our courts rely on the ECtHR’s case law when evaluating whether local laws are in conflict with the ECHR. Provisions of the ECHR take precedence over national law in Aruba, making it possible to directly invoke the ECtHR’s judgment before national courts. Although the Court did point out two context-specific considerations in the Oliari ruling (repeated rulings by the Italian Constitutional Court calling for legal recognition of same-sex unions and a majority support thereof), the Court’s reasoning was also based on general considerations, such as the rapidly growing trend globally and among CoE member states towards legal recognition of same-sex couples (noting that 24 out of 47 member states now legally recognise same-sex relationships), and found Italy to be in violation of Article 8 of the Convention by not fulfilling its positive obligation to ensure a specific legal framework for the recognition and protection of same-sex unions. Undeniably, this ruling is to have an indicative effect for other member states, including Aruba, as part of the Kingdom of The Netherlands. If this judgment can now also be regarded as the new minimal European standard of protection for same-sex relationships remains uncertain. But, at least two human rights scholars argue that the Oliari case could effectively be relied upon by similarly situated same-sex couples in other member states. The concurring opinion expressed a similar anticipation, and also indicated that a limitation of a positive obligation to local conditions might not even be conceptually possible under the ECHR. Aruba’s current lack of any kind of legal framework for same-sex couples could therefore be put to the test by local same-sex couples aspiring a more speedy legal recognition of their union, by seeking a judicial ruling on an alleged infringement of Article 8 ECHR by Aruba. This can be an interesting legal development. In this respect, the freshly (right before submission of this thesis text) announced Amendment to be presented and possibly accepted by Aruba’s Parliament – providing for a legal framework for same-sex unions – can be regarded as conforming with the indicative effect of the European Court of Human Rights’ ruling in the Oliari case, thereby preventing possible adverse rulings against Aruba due to a lack of any legal provision for same-sex unions.

The US Supreme Court decision in the Obergefell case can be expected to have a different kind of influence; considering that Arubaâ&#x20AC;&#x2122;s approach to same-sex marriage as part of the Kingdom is also partly shaped by a resistance to the imposition of what are considered to be Dutch-European standards on an internal issue of local family law and in view of the close proximity of the United States and its significant cultural influence on Aruba, the recent judgment of the US Supreme Court is likely to have a persuasive impact on public acceptance of same-sex marriage in Aruba, by giving it a more universal appeal.

‘All persons in Aruba shall be treated equally in equal circumstances. Discrimination on […] any [other] grounds whatsoever shall not be permitted’. Article I.1 Constitution of Aruba

5.4 A CALL FOR CIVIL DISCOURSE As stated at the beginning, and as revealed by the thesis title, this research did not pretend to present a comprehensive comparative legal analysis of same-sex marriage case law of the US Supreme Court and the European Court of Human Rights, due to the complexity of such an undertaking and the limited boundaries set by a master’s thesis. Its more humble aim being geared towards the regeneration of self-reflection by providing a deeper understanding of essential human rights concepts, and the widening of perspective. From this end of the spectrum, I see the writing of this comparative thesis by a student of the University of Aruba essentially as a tiny, yet important contribution to LGBT-rights discourse in Aruba; which still remains an under-discussed issue and if touched upon, a highly controversial terrain dominated by deeply rooted religious prejudice, little openly advocated approval (except for the rainbow profile filters along with occasional comments on Facebook) and a lack of moral leadership from those in power. An unassuming contribution, not merely in light of Aruba’s obligations under the ECHR, its direct applicability and the effects of a possible recognition of same sex-marriage by the ECtHR in the near future, but from a more profound and perhaps dreamy perspective: making us question our own mode of approach and hopefully transcend the current dominant legal (discriminative) perspective381, armed with conceptual insights into human rights and the belief that human rights are at the core of the inherent dignity of all human beings. I strongly believe, the most important question in any living democracy should always be whether a majority is infringing the fundamental rights of a minority. Or to be more specific to the matter at issue: are we in Aruba excluding some members of our society of enjoying a fundamental human right ? Are we treating some members of our society as second class citizens ? Do we, as a society exemplify the core value reflected in the first article of the Constitution of Aruba ? Do we, as a society believe equality and human dignity to be superior to local customs ? Are we openly asking ourselves these crucial questions ? Are we even having an open conversation about such fundamental and self-defining issues ? But more importantly, are we in Aruba willing to tackle these important issues on our own – without outside intervention ? Defining our own fundamental values ?

381

In this regard I highly recommend the Goya award-winning Venezuelan film ‘Azul y no tan rosa’ (‘Blue and not so Pink’), which deals (among other things) with homosexuality and homophobia in the context of a ‘machista’ culture very similar to our own. It can be watched freely online at: https://vimeo.com/98187737 (With a special thanks to my cousin Rebecca Roos, for yet another great movie recommendation).

All things considered, why wait for Europe to intervene in the near future (and imaginably shout out: judicial imperialism382), if we can pave our own way for marriage equality by creating a civil discourse on same-sex marriage, and by elevating the quality of the debate on human rights in general, here at home. Starting at the University of Aruba. In the form of critical scholarship and public commentary on these topics: as active public commentators, either by publishing articles, giving explanation to the media or by providing public forums in accessible language. To help shape a wider and deeper understanding of the importance of human rights. To ensure that respecting and protecting fundamental human rights is not merely seen as an imposed legal obligation, but also as a shared value; as something we in Aruba care deeply about. After all, it seems to me that one of the most beautiful and vibrant aspects of our local academic institution is its capacity to have an influential impact on Aruban hearts, minds and souls. And that is the only durable way to ensure Aruban laws and policies are justly aligned with fundamental human rights, which ultimately give expression of our true love of humanity. Over to you, UA and AUA . . . it is time to straighten our local LGBT-rights record autonomously, lead the Caribbean over the rainbow, and catch up with equal love.

382

On a final and more intriguing note, Professor Kang’ara argues that ‘defining marriage was an important act of conquest and a corner stone of the market oriented state’ that emerged through colonialism. From this critical comparative perspective, the traditional notion of marriage can also be seen as just one more import of colonial legal thought. Definitely worth researching in Aruba’s own legal-historical context. See, Philomila Tsoukala, Colonial and Postcolonial Constructions of Family Law, JOTWELL (May 24, 2013), (reviewing Sylvia Wairimu Kang'ara, Beyond Bed And Bread: Making The African State Through Marriage Law Reform -- Constitutive And Transformative Influences of Anglo-American Legal Thought, 9 Hastings Race & Poverty L. J. 353 (2012).

JURISPRUDENCE UN Human Rights Committee Joslin et al. v New Zealand, Communication No. 902/1999, UN Doc CCPR/C/75/D/902/1999 (2002)

United States Supreme Court Marbury v. Madison, 5 U.S. 137 (1803) Brown v. Board of Education, 347 U.S. 483 (1954) Cooper v. Aaron, 358 U.S. 1 (1958) Loving v. Virginia, 388 U.S. 1 (1967) Mathews v. Eldridge, 424 U.S. 319 (1976) Obergefell v. Hodges, 576 U.S. ___ (2015)

European Court of Human Rights Christine Goodwin v the United Kingdom [GC], no. 28957/95, 11 July 2002, ECHR 2002VI Schalk and Kopf v. Austria, no. 30141/04, ECHR, 24 June 2010 Gas and Dubois v. France, no no. 25951/07, ECHR, August 2010 X and others v. Austria [GC], no. 19010/07, ECHR 2013 Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, ECHR 2013 Hämäläinen v. Finland, no. 37359/09, ECHR 2014 Oliari and Others v. Italy, nos. 18766/11 and 36030/11, ECHR 2015 62

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Over the Transatlantic Rainbow of EQUAL LOVE A Comparative Perspective of

The US Supreme Court recently recognised the fundamental right to marry for same-sex couples in the United States, requiring States to issue same-sex marriage licenses and to recognise validly performed same sex-marriages out-of-State; a landmark American ruling that will unquestionably impact other democracies reckoning with the issue of same-sex marriage. On the other side of the Atlantic, the European Court of Human Rights still does not require member states under its jurisdiction to grant same-sex couples equal access to marriage.

the US Supreme Court & the European Court of Human Rights on the Fundamental Human Right to Marry for Same-Sex Couples

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The right to marry is an internationally recognised fundamental human right. Both legal systems recognise this fundamental right in their legal orders, yet only the US upholds this right for same-sex couples.

This UA LL.M. thesis provides a comparative perspective on the adjudication of human rights provisions invoked by same-sex couples to claim access to legal marriage in the most recent landmark ruling in the case Obergefell v Hodges brought before the highest court in the United States of America and in the recently issued ground-breaking ruling in the case Oliari and Others v. Italy brought before the supranational court on matters of human rights in Council of Europe member states (the ECtHR).

By shedding a transatlantic comparative light on two divergent judicial responses to same-sex marriage â&#x20AC;&#x201C; with the purpose of sharpening understanding of essential human rights concepts â&#x20AC;&#x201C; this thesis ultimately aspires to induce a local self-reflection on same-sex marriage in Aruba. Calling for a civil discourse as the local path to tackle this issue autonomously, and more importantly, as an essential condition to ensure that legal recognition of same-sex marriage and the respect and protection of human rights are carried as shared inner Aruban values.

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