On July 16, 2014, the European Court of Human Rights affirmed in Hämäläinen v. Finland that "same-sex" marriage is currently not a right protected under the European Convention on Human Rights (ECHR). But for how long?
To resolve the question of whether the Convention provided a right to "same-sex" marriage, the Court did what it most always does: survey the laws of member States and Council of Europe policy to determine whether a "European consensus" exists on the issue. Thus, rather than interpreting the text of the Convention based on the text's plain, historical meaning, the Court interprets the text based on the modern-day interpretations of other nations. How many nations and which nations is anyone's guess. In Hämäläinen, because only ten member States allowed "same-sex" marriage, the Court held that no European consensus currently existed, and therefore there was no violation of Article 8.
Sure, this case is a victory for those opposed to "same-sex" marriage. But again, for how long will this victory last? If five more member States pass laws in favor of "same-sex" marriage, will this constitute a consensus, therefore magically transforming the meaning of Article 8 into requiring a member State to allow "same-sex" marriage? If not five, how about ten? What if nations outside Europe continue adopting "same-sex" marriage? Could the Court then find a consensus? It certainly has in the past. In Goodwin v. United Kingdom, the Court found a "right" in the Convention to have the government recognize a person's sex change based on an "international trend," and this despite the fact that there was no "common European approach" on the issue. E.g., Goodwin v. United Kingdom, 35 E.H.R.R. 18, para. 85 (2002) ("The Court accordingly attaches less importance to the lack of evidence of a common European approach . . . than to the clear and uncontested evidence of a continuing international trend in favour not only of increased social acceptance of transsexuals but of legal recognition of the new sexual identity of post-operative transsexuals.") (emphasis added).
The fact is that European consensus is hardly a legal standard by which the Court can interpret the Convention. It is ambiguous, unpredictable, and provides judges an incredible amount of discretion. Indeed, in one of his articles titled "The Dangerous Search for an Elusive Consensus: What the Supreme Court Should Learn from the European Court of Human Rights," Jeffrey A. Brauch, Dean of Regent University School of Law, noted that "[t]he ECHR's experience of over thirty years in hundreds of cases demonstrates that it is simply unable to articulate and apply a clear, predictable, and workable consensus standard."
Without a clear, predictable legal standard, the rule of law will be destroyed. And upholding the rule of law, not expanding the "rights" covered by the Convention, is what will preserve the work and influence of the European Court of Human Rights for years to come. For a comprehensive discussion on this issue, see my most recent article: Preserving the European Convention on Human Rights: Why the UK's Threat to Leave the Convention Could Save It.
S. Ernie Walton is Administrative Director of the Center for Global Justice, Human Rights, and the Rule of Law. Ernie also serves as a member of Regent Law’s adjunct faculty teaching International Law and National Security Law.