Defending traditional marriage in Europe: A cautionary tale for American liberals

Last month, I had the chance to go on several radio programs (at 1:49:10 and at 51:33) to talk about recent developments at the European Court of Human Rights. As I told listeners, in July the Council of Europe’s highest court handed down its ruling in the case of Hämäläinen vs. Finland, Application no. 37359/09. Given the progressive political and legal culture that surrounds that court, its latest ruling proved altogether surprising.

The court’s landmark decision defends traditional marriage and frustrates the efforts of European progressives who have been agitating for the legalization of same-sex marriage. C-FAM, the Catholic Family and Human Rights Institute, which operates out of New York and Washington, reported on July 25 that “the judgment has a devastating effect on gay rights in Europe, dashing hopes that same-sex ‘marriage’ can become a reality there.” Writing for LifeSiteNews, Stefano Gennarini, J.D., explained that the “ruling is a particularly hard blow to gay rights in Finland, where a parliamentary committee rejected same-sex marriage before it could be brought to a vote last month for the second time since 2012.” But, before all is said and done, the ruling could end up delivering a serious blow to American liberals, as well.

In the wake of a Virginia court ruling that took a decisive stand against traditional marriage, Catholics and other cultural conservatives might benefit from a closer look at the European court case, which could offer them ammunition for use in the culture war over marriage. But, in order to grasp the significance of the court’s ruling, it is important to consider the case’s facts first.

Here are the basic facts: In 2007, Heli Hämäläinen, a Helsinki-based male-to-female transsexual born in 1963 and married for more than a decade to a woman with whom he had a daughter in 2002, filed an application for a new identification number. Hämäläinen wanted the new number to reflect the fact that he had changed both of his first names in June of 2006 in order to reflect his self-identification as a woman. His local registration center denied his request for the new identification number.

Finnish officials argued that granting the request would have amounted to a recognition of same-sex marriage. Under current Finnish law, it is impossible for two women to contract marriage. In fact, as Gennarini notes, “Finland is the only Scandinavian country that does not allow same-sex marriage.” Therefore, Hämäläinen would have had to enter into a civil partnership with his wife if he wanted his self-identification as a woman to be recognized by the Finish government. In response, Hämäläinen claimed that such a solution to his situation amounted to divorce being forced upon him and his wife. Citing religious objections to divorce, he refused to accept the resolution he was offered.

At that point, he brought a suit against his local government. A lower court ruled against him in May of 2008. Following an appeal of that court’s decision, a higher court ruled against him in February 2009. (In 2009, Hämäläinen had undergone a gender re-assignment surgery.) Yet, Hämäläinen filed a second appeal of the original Finnish court’s ruling. And, in August of 2010, the Supreme Administrative Court of Finland refused his second extraordinary appeal. 

Sensing that he was not making progress in Finland, Hämäläinen brought his complaint before the European Court of Human Rights, which is headquartered in Strasbourg, France. Initially established in 1959 and then permanently established in 1998, that court hears suits alleging violations of the European Convention on Human Rights. Hämäläinen filed his first suit with that court as his case was still being considered before Finland’s Supreme Administrative Court.

On July 8, 2009, Hämäläinen filed his initial complaint with a lower section of the European Court of Human Rights. That lower section handed down its decision on November 13, 2012, upholding the rulings of the two lower Finnish courts. Article 43 of the European Convention on Human Rights permits appeals of cases to the court’s highest chamber, the so-called Grand Chamber. And so, Hämäläinen appealed the lower European court’s ruling on April 29, 2013. That court’s Grand Chamber handed down its final and definitive ruling in the case on July 16, 2014. In that decision, the Grand Chamber upheld all of the previous rulings of the Finnish and European lower courts.

Hämäläinen had lost his cases both at home in Finland and in Strasbourg at the European Court of Human Rights. But on what grounds?

When he brought his challenge against Finland before the supra-national European high court, Hämäläinen had based his complaint on three charges. First, he argued that Finland’s resolution of his situation—which he claimed forced divorce upon him and his wife—constituted a violation of Article 8 of the European Convention on Human Rights, which establishes an individual’s “right to respect for private and family life.” Hämäläinen’s argument was that the Finnish government’s “imposition” of divorce and its refusal to acknowledge same-sex marriage deprived him of the rights he is guaranteed in Article 8 of the convention. Second, Hämäläinen reasoned that the Finnish courts had violated Article 12 of the convention, which establishes the right of individuals to contract marriage. Third, he argued on the basis of the two previous articles that the lower courts had violated Article 14 of the convention, which prohibits unjust discrimination. In essence, his claim was that Finland’s refusal to acknowledge same-sex marriage amounted to a violation of the convention’s prohibition against unjust discrimination and a refusal to respect his private familial affairs.

In its ruling, the Grand Chamber of the European Court of Human Rights argued that “there had been no violation of Article 8 (right to respect for private and family life),” “there was no need to examine the case under Article 12 (right to marry),” and “there had been no violation of Article 14 (prohibition of discrimination) taken in conjunction with Articles 8 and 12.” A majority of the Grand Chamber’s 17 members upheld that ruling, which was determined to be final in the matter.

The reasoning of the court was clear. With respect to Article 8 of the convention, the court determined that no contracting member state of the Council of Europe can be forced to admit homosexuals to same-sex marriages. In its final ruling, it reiterated “its case-law according to which Article 8 of the convention cannot be interpreted as imposing an obligation on contracting states to grant same-sex couples access to marriage.” In other words, Hämäläinen’s right to respect did not demand that Finnish officials recognize (his now) same-sex marriage.

More to the point, regarding Article 12 of the convention, the court stated that European law enshrines traditional marriage and establishes that its regulation is a matter of independent national law. The Grand Chamber stated, “The court reiterates that Article 12 of the Convention is a lex specialis for the right to marry,” which “enshrines the traditional concept of marriage as being between a man and a woman.” Therefore, that lex specialis extends to male-female couples and “secures the fundamental right of a man and woman to marry and to found a family.” It does not extend to same-sex couples; and, as such, it could not be invoked in this case. Furthermore, the court stressed that “Article 12 expressly provides for regulation of marriage by national law.” For these reasons, the court found that the lower courts had not violated Article 14. There had been no unjust discrimination against Hämäläinen.

The court took two additional steps in its ruling. First, it stated there was no consensus among the contracting states of the Council of Europe on allowing same-sex marriage. “While it is true,” the decision observed, “that some contracting states have extended marriage to same-sex partners…it appears that currently 10 member states [out of 47] allow same-sex marriage.” As a consequence, “it cannot be said that there exists any European consensus on allowing same-sex marriages.” Second, the court ruled that civil partnerships enjoy most of the same legal protections as marriage, including established parental rights. An official statement of the Grand Chamber explained this point, noting that “the differences between a marriage and a registered partnership [do] not involve an essential change in the applicant’s legal situation.” More to the point, the statement underscored that “the court observed that the civil partnership would not affect the paternity of the applicant’s daughter as it had already been validly established during the marriage.”

To be sure, the court’s ruling will frustrate European progressives who have been agitating for the legalization of same-sex marriage. But, the decision could hit American liberals just as hard. I explain the reason in an Aleteia article I published late last month.

Bottom line: American liberals will have a hard time reconciling the court’s decision with their methodological and moral principles. Recent developments in American jurisprudence have seen both liberal scholars and left-leaning practitioners calling for the inclusion of European and international legal statements in the rulings of American courts.

Addressing the Moritz College of Law at the Ohio State University in 2009, US Supreme Court Associate Justice Ruth Bader Ginsburg—who issued a dissenting opinion against religious freedom last month—told legal experts, “I frankly don’t understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law.” She asked, “Why shouldn’t we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?” Back in September of 2013, the Huffington Post reported that Ginsburg had officiated at a friend’s same-sex marriage and had stated that “growing acceptance of gay marriage reflects the ‘genius’ of the US Constitution.”

Now, she and other liberal progressives will have to contend with the European Court of Human Rights’ ruling, which delivers a direct blow to claims about the supposed inevitability of same-sex marriage.