- - Monday, September 1, 2014

ANALYSIS/OPINION:

A court decision issued last month about same-sex marriage received almost no news coverage in the United States, yet the decision could have significant implications when the U.S. Supreme Court decides whether the Constitution requires it.

The case, Hamalainen v. Finland, was decided by the Grand Chamber of the European Court of Human Rights, which ruled in an overwhelming majority opinion that no right to same-sex marriage exists under the European Convention on Human Rights.

The European Court of Human Rights is no ordinary court. It is the supreme human rights court in Europe and has jurisdiction over 47 European nations. It decides cases of the highest legal importance arising under the European Convention on Human Rights, the foundational human rights document of those 47 member states. In this sense, the European Court of Human Rights is similar to America’s Supreme Court, and the Convention on Human Rights is similar to the U.S. Constitution.

The European Court of Human Rights‘ importance means that the U.S. Supreme Court has looked to its rulings as part of its considerations when deciding issues of American constitutional law. In a resounding 14-3 vote, this important court ruled that the nations of Europe do not have to recognize same-sex marriage if they don’t want to because there is no right to same-sex marriage under Europe’s “constitution,” the European Convention on Human Rights.

In reaching this decision, the court had to determine exactly what right to marriage the convention protected. The question before it was whether the fundamental right to marry included a right to enter into a same-sex marriage, and the court answered the question with a resounding no, determining instead that the fundamental right to marriage guaranteed by the convention only encompassed one-man, one-woman unions. Individual states can choose to recognize same-sex unions if they want to do so, but the convention does not require them to.

The reason for that conclusion is noteworthy: The court explained that the nations of Europe were working out the answer to the question “What is marriage?” for themselves. Ten nations had redefined marriage in their laws while the other 37 retained the existing definition of marriage. Despite the highly publicized situations in France and the United Kingdom, the rest of Europe has seen an incredibly strong movement to constitutionally protect marriage as the union of one man and one woman.

Only weeks ago, the Slovak Republic passed a constitutional amendment affirming the marriage as a man-woman union. This was done on the heels of a referendum in Croatia, which saw 66 percent of voters calling for a constitutional amendment to affirm marriage, a referendum to reject an attempt to redefine marriage in Slovenia, and the adoption of an article of the new Hungarian Constitution enshrining man-woman marriage and the natural family.

The court considered these facts and concluded that, because there was no European consensus on what constituted marriage, it would be inappropriate for it to impose a definition on all 47 member-nations of Europe. Better to allow the debate to continue and let the nations of Europe decide the marriage question for themselves.

In the same way, the people of the United States are engaged in a robust national debate regarding marriage. Some states have chosen to redefine marriage in their laws to include homosexual unions. Others have decided marriage should remain the union of a man and a woman. There is no “American consensus” on this issue, any more than a European one. In this context, the U.S. Supreme Court may choose to follow the European Court’s lead and decline to end the debate prematurely by imposing a “one size fits all” answer on the American people.

No one knows what the U.S. Supreme Court will decide when one of the marriage challenges reaches it. However, if the high court decides to let states decide for themselves whether to affirm marriage as the union of one man and one woman, no one can look to Europe and claim that the United States. is “on the wrong side of history.” Allowing greater freedom does not place the nation on the wrong side of history and is consistent with America’s great values and form of government.

Roger Kiska is senior legal counsel with Alliance Defending Freedom at its European office in Vienna, Austria. Joseph La Rue is legal counsel at the alliance’s headquarters in Scottsdale, Ariz.

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