by Roger Kiska
Only 25 days after the Obergefell judgment, the European Court of Human Rights, the highest human rights court in Europe, with jurisdiction over 47 nations, did what only months ago would have been unthinkable: it created a European “right” to same-sex civil unions by citing the Obergefell ruling as evidence of an emerging consensus toward recognition of same-sex relationships internationally.
A strong parallel can and must be drawn with the recent judgment of that same Supreme Court in Obergefell v. Hodges. Building on that very same poisonous penumbra, the judgment created a “right” to same-sex “marriage.” Legal commentators did not have to wait long at all for the weight of this judgment to be felt internationally. Only 25 days after the Obergefell judgment, the European Court of Human Rights, the highest human rights court in Europe, with jurisdiction over 47 nations, did what only months ago would have been unthinkable: it created a European “right” to same-sex civil unions by citing the Obergefell ruling as evidence of an emerging consensus toward recognition of same-sex relationships internationally.
Several shocking elements can be inferred from the European Court’s unanimous chamber ruling on July 21 in the case Oliari and Others v. Italy. The first inference is the highly dangerous and selective element of populism the court has used in creating new human rights (which itself is a logical fallacy because rights cannot be created; either they are or they are not). The court continued to use its highly contentious and hypocritically finicky doctrine of “emerging consensus” to determine that a right to recognition of same-sex civil unions is required under the European Convention of Human Rights, because a trend exists in Europe towards such recognition.
This “trend,” sufficient for the court to legislate for all of Europe on such an important moral and cultural question, amounts to 24 of 47 member-states having such recognition. This is precisely 50 percent plus one of the member-states. Far from being an “emerging consensus,” such a low threshold of states dictates exactly the opposite: that no consensus exists.
The court also completely ignored the strong counter-trend in Europe, where countries like Slovakia, Croatia, and Hungary have legislated in favor of the natural family and man-woman marriage, or where those such as Romania have rejected civil unions.
The hypocritical aspect of the judgment is the selectivity with which the court applies the doctrine of emerging consensus. Take for example the issue of parental rights, including the right to home educate or to opt one’s children out of radical sexual education classes. In the last 10 years, the court has been flooded with complaints, among which are cases with such egregious facts as children being taken away from parents for home-educating in Sweden, a 15-year-old girl being placed in a mental asylum in Germany for being home-educated, or 14 parents in Salzkotten, Germany required to serve more than 40 days each in prison simply for opting their 9- to 10-year-old children out of two days of mandatory sexual education classes.
The European Court has universally rejected all of the parental rights cases dealing with these two issues, not even admitting them to be heard on the merits despite the fact that more than 40 of the 47 member-states allow for home education and opt-outs – an emerging consensus if one ever did exist.
The European public should also be very concerned with the court’s reasoning that, based on opinion polls in Italy and the supposed will of the Italian judiciary, the European Court would itself create a right to same-sex civil unions. Let’s be clear: it is not the role of seven judges sitting in Strasbourg to decide for Europe how to legislate merely because they think that they have discerned the will of the people. The U.S. Supreme Court was at least cavalier enough to admit they could not care less about the will of the American people by overruling the tens of millions of voters who had recently affirmed that marriage should be exclusively between one man and one woman.
Oliari and Others v. Italy is perhaps the most dangerous and least reasoned judgment ever to come from the European Court of Human Rights. The court ruled in part, for example, that legal recognition of civil unions is necessary because it will provide a sense of legitimacy to same-sex relationships. Making couples feel good about their romantic relationships is not a legitimate interest that warrants attention from any court or legislature.
The court also made the blanket statement that same-sex couples are just as capable of having nearly the exact same type of relationship as heterosexual couples, completely ignoring one of the most fundamental elements of marriage: creating and raising a family.
The court also openly and notoriously took on itself the exclusive role of legislating on behalf of the Italian parliament, criticizing the parliament for failing to follow the will of the people on this issue.
Finally, it is important to note that the Italian legislation did not discriminate against anyone. Same-sex civil unions are not available to anyone under Italian law. The European Court fallaciously argued that there was no legal argument the Italian government could put forth to defend this position. But Italy should not have to defend its marital laws to Strasbourg if it chooses to bolster a healthy marriage culture by making marriage the only option for legal recognition of relationships.
We must not shy away from the reality that, in every nation that has legislated same-sex “marriage,” the legislation of same-sex unions always preceded it. The European Court, in making its ruling in Oliari, may well be counting on that fact.
The judgment in Oliari is not yet final, as Italy has a right of appeal to the Grand Chamber of the European Court. That’s important, as this case draws a strong parallel to the last time the court tried to legislate on behalf of Europe – in the Lautsi v. Italy case. The Lautsi court ruled unanimously that Italy had to remove all of the crucifixes from its public schools. The appeal was historic in that 10 nations joined Italy in its appeal, leading to a 15-2 judge reversal by the Grand Chamber. We can only hope that history repeats itself.
In the end, the only emerging consensus that has become clear in 2015 is that we live in a brave new world, where judges far too often take on the role of legislators, creating the law rather than upholding it.
Roger Kiska is deputy director of ADF International, based in Vienna, Austria
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