of Non-discrimination on the Grounds of Sexual Orientation and Same-Sex Marriage. A Comparison Between United States and European Case Law




© Springer International Publishing Switzerland 2015
Laura Pineschi (ed.)General Principles of Law – The Role of the JudiciaryIus Gentium: Comparative Perspectives on Law and Justice4610.1007/978-3-319-19180-5_11


Principle of Non-discrimination on the Grounds of Sexual Orientation and Same-Sex Marriage. A Comparison Between United States and European Case Law



Veronica Valenti 


(1)
Researcher in Constitutional Law, University of Parma, Parma, Italy

 



 

Veronica Valenti



Abstract

By way of a comparison between European and United States case law regarding same-sex marriages, this chapter aims at stressing the important role of judicial activity in implementing the full meaning of equality in exercising the fundamental right to marry. From an analysis of different judgments concerning the same-sex marriage, it is possible to observe a gradual global prevailing of the “paradigm of heterosexual marriage”, as a result of the non-discrimination principle on the grounds of sexual orientation, which is consolidated by the occidental juridical culture. The study of this case law also points out the relationship between social consent, judicial activity and legislative power. The European supranational courts as well as the US Supreme Court seem to check in a more stringent manner the discretion of the domestic/State legislators, in accordance with the growing social consent in favor of same-sex marriages. The “new approach” of the European supranational courts and the US Supreme Court has the merit to trigger a virtuous dialog among lower courts, State legislators and civil society in order to gradually give fullness to the meaning of the non-discrimination principle on the grounds of sexual orientation. Hence, it is possible to say that the current question is not if the same-sex marriage is constitutional but who decides about it. Judicial action, in the absence of legislative answers, risks guaranteeing only a fragmentary (and often contradictory) protection of fundamental rights. It should be desirable that the legislator will choose suggestions coming from the “living law” and that the “dichotomy” between the two powers will be reduced to unity, according to the rules of a democratic system, based on the separation of and loyal cooperation between the same powers.



1 United States and European Case Law: The History of “Parallel Routes”


Despite many differences between the United States and the European legal system,1 we can find some “assonances” when we compare the United States (federal and State level) case law and the European (supranational and national level) case law about the non-discrimination principle on the grounds of sexual orientation and, particularly, with regard to the samesex marriage.

Initially both in the Unites States and in Europe, the principle of non-discrimination based on sexual orientation rooted thanks to the “judicial activism”.

Indeed, without any specific normative framework to refer to, the European courts—in particular, the European Court of Human Rights (ECtHR)—and the US Supreme Court declared the principle of non-discrimination on the grounds of sexual orientation, emphasizing its potential application in various fields, including the familiar one. In addition, the judicial approach concerning non-discrimination principle on the grounds of sexual orientation created the pre-conditions for the implementation of a “gradual protection” of gay rights.

As noticed by some authors,2 the “step by step approach” of judges has enabled conquests that perhaps would not have been possible to obtain through legislative action, if we consider historical times or if we consider the dominant public opinion toward sexual freedom.

This is demonstrated by the fact that, almost globally, the jurisprudential excurses concerning gay rights developed through four phases:

(1)

important decisions of the US Supreme Court and the ECtHR have led to the decriminalization of sodomy in States where this was a crime and/or an aggravating circumstance of the crime. Three leading cases can be mentioned: the Dudgeon case (ECtHR, 1981)3; the Romer 4 and the Lawrence 5 cases (US Supreme Court, 1996, 2003);

 

(2)

a second phase began in the late nineties, in particular in the European Union, thanks to important judgements of the European Court of Justice (ECJ) relating to the non-discrimination principle on the grounds of sexual orientation in the workplace (Grant case,6 1998; D. and Kingdom of Sweden case,7 2001). This judicial trend was then followed by European Union institutions that:



  • established the general principle of non-discrimination (Article 13 European Community Treaty—Amsterdam 1997, today Article 19 Treaty on the Functioning of the European Union—Lisbon 2007);


  • adopted the Directive 2000/78/EC, establishing a general framework for equal treatment in employment and occupation or the Directive 2004/38 on the rights of European Union citizens and their family members to move and reside freely within the territory of Member States, with which the EU opened the notion of family member to the same-sex spouses and to same-sex partners;


  • included the non-discrimination principle between the fundamental EU values (Article 2 Treaty on European Union—Lisbon, 2007);


  • and, finally, mentioned the principle of non-discrimination on the grounds of sexual orientation in the EU Charter of Fundamental Rights (Article 21), a document legally binding all Member States;

 

(3)

the Courts passed the purely “individualistic” approach of previous decisions in order to assert a “pluralistic view” of human dignity and the freedom to live in their own familiar dynamic, respecting sexual orientation, as a “new declination” of the self-determination of the individual within his/her private sphere.

 

From this point of view, it is clear the influence that the decisions of the courts have exercised on the legislative evolution, with regard to same-sex marriages and/or civil unions.8

As a result of this “global” judicial trend, many States and national legislators intervened to recognize same-sex couples in a more or less deep manner, also in accordance with national social consensus.

Looking to these results, it is possible to draw a “mapping” of different laws that came into force in the United States but also in many European Countries. Indeed, we can distinguish:

(1)

States that follow the “separate but equal” approach have introduced a civil institution that is, now, for the same-sex couples, like marriage is for heterosexual couples. This implies that the progressive and gradual extension of the rights linked to marital status, to the same-sex couples is, from time to time, “filtered” by the legislator and controlled by the Constitutional Court. The German Lebenspartnerschaft could be an example. As a result of important decisions of the Bundesverfassunggericht, it was possible to extend to homosexual partners the same social security rights (i.e. the same survivor’s pension that is recognized for heterosexual married couples9 or some parental rights, like the right to adopt a biological child or an adopted child of the respective partner)10;

 

(2)

States that have opened the institution of marriage to the same-sex couples, (e.g. Belgium, Finland, France, Portugal, Spain, The Netherlands and the United Kingdom. In the United States it is thought that as a result of the Windsor case, and also the recent decisions of the other federal judges, thirty-six States now recognize the same sex marriage);

 

(3)

States, such as Italy, in which same-sex couples can not marry; or where there is not any specific institution (like the German one) for the same-sex couples or where any institution does not exist, like the French pact civil de solidarieté (Pacs), that could protect homosexuals as heterosexual couples, that do not wish to marry. In Italy same-sex couples could only benefit from judicial protection, with regard to these specific situations.

 

With regard to this mapping, we can note that, at least, since 2010 to the present, a further “season” for the protection of same-sex couples has started.

In this new phase, “the challenge” (legal, political and ethical) is represented by the overcoming of the “paradigm of heterosexual marriage” and by the overcoming of the “separate but equal” approach, that has inspired many State laws. From this point of view, judicial protection for some specific situations (i.e. the Italian model) can not satisfy the need of equality, as imposed by the constitutional principle of non-discrimination on the grounds of the sexual orientation.

This consideration leads us to point out the fourth assonance between the US context and the European one. Indeed, at State level, some inhomogeneity in the protection of the homosexual family can record.

This situation depends on the discretion that both the US Supreme Court and the European courts recognize the State/national legislator.

Neither the American Federation nor the European Union have the formal power, the “formal authority” to impose to all Member States a unique notion of marriage.11

This has been said, as in the US Supreme Court in Windsor case of 2013 in which the Supreme Court declared the unconstitutionality of section 3 of the Defense of Marriages Act, because it infringes the Fifth Amendment of the Federal Constitution.12 As a result of that decision, the Supreme Court asserted (but also going further beyond this) that the imposition at the federal level of the “heterosexual paradigm” of marriage is an invasion of the legislative competence of the State.

Similarly, this “opening” to the discretion of the national legislators, emerges also in the ECtHR or ECJ case law. It could be mentioned, for example, the Schalk and Kopf v. Austria case, where, for the first time, the ECtHR has been required to assess whether the refusal by State authorities to the same-sex marriage could be a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) (especially, Articles 12, 8 and 14).13

In its judgment, the European Court asserted that, because of the social evolution of the family concept, as recorded in some States, “it [would be] artificial to maintain the view that, in contrast to a heterosexual couples, a same-sex couple [could not] enjoy ‘family life’ for the purposes of art. 8”.14

Similarly the US Supreme Court and the ECtHR abandoned “the paradigm of heterosexual marriages”, in order to adopt “a more neutral” concept of marriage, with respect to the peoples’ sexual orientation. However, at the same time, the same judges asserted that:

[A]s matters stand, the question of whether or not to allow same-sex marriages is left to regulation by the national law of the Contracting State.15

One could question as to why. The answer seems to be the same in the United States as in Europe:

Marriage has deep-rooted social and cultural connotations which may differ largely from one society to another. The Court reiterates that it must not hurry 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 society.16

The same “opening” to the discretion of the national legislators also emerges from the ECJ case law (i.e. D. and Kingdom of Sweden case), as well as from later cases (i.e. Maruko case17 and Römer case18).

I would like to anticipate that in the latest European case law, the European judges seem to pay more attention to the social trends. It appears as well that European judges are prepared to check in a more stringent manner the discretion of domestic legislators, in accordance to a growing social consent in favor of same-sex marriage.

From this point of view, it is important to stress the relationship between “the social consent” and the judicial activity: without a clear position of the legislator on same-sex marriage, the casuistic approach of the judges could test and, at the same time, influence the social consent on this matter. In addition, through particular argumentative techniques, the judges are able, crosswise, to create conditions to encourage a homogeneous legislative framework in favor of same-sex marriages.

The use of comparison by judges, for example, shows that the “others have done so” may represent an important resource in order to decide difficult cases, to overrule a decision, to better support similar arguments, to “soften” the reactions of the public opinion, with regard to “social consequences” of the decision.

Both in United States and European case law, there are frequent references to foreign leading cases relating to non-discrimination based on sexual orientation. There is also a circulation track of different models,19 and, as many authors have noted, this has become a real “dialogue between Courts”.20

This dialog describes, in a symptomatic manner, the stronger interaction between courts, as result of the globalization process, of the creation of “global standards” in the protection of fundamental rights and of the “new universalism of rights protection, built on a cooperative constitutionalism, projected beyond the boundaries of the State”. 21

Emblematic is a decision of the Spanish Constitutional Court (judgment no. 198 of 2012). In order to justify the evolutionary interpretation of marriage, as protected by Article 32 of the Spanish Constitution, the Court referred many times to international and foreign experiences, especially when the same remembered:

The equality between same sex marriages and opposite sex marriages has been consolidated by the occidental juridical culture.22

It is interesting to point out the definition of “occidental juridical culture”: for the Spanish Court, it includes, not only the doctrine, international law, the judgments of the international and European courts but also comparative law and the foreign experiences that have the same social and cultural conditions.23 Consequently, as correctly noted by some Italian authors,24 we can say that the referral to foreign experiences is used, most of the time, to demonstrate the existence of some common (both European and American) values and to promote the evolutionary interpretation of marriage.

In principle, it could be said that, if the concept of “occidental juridical culture” is linked to the idea of the legal system as social phenomenon bound to reality, then the judge is the trait d’union between law and society and, in a dynamic way, an important entrance door for the social change.


2 The Judicial “Development” of the Principle of Non-discrimination of Same-Sex Couples and the Growing Conditioning by Supranational Judges on the Discretion of State/National Legislators



2.1 European Supranational Level: The ECHR System


As previously mentioned, the principle of non-discrimination on the grounds of sexual orientation has emerged, both in the American case law and in the European case law, primarily on the basis of an evolutionary interpretation of the concept of privacy and self-determination of individuals (as guaranteed by Article 8 of the ECHR and by the Fourteenth Amendment of the US Constitution).

Starting at the end of the nineties, the ECtHR has inaugurated a combined interpretation of Articles 8 and 14 (prohibition of discrimination on many grounds—but not expressly on the grounds of sexual orientation—in the exercise of freedoms protected by the European Convention), never more be abandoned.25

To say that there has been a discrimination in the exercise of rights protected by the ECHR on the grounds of sexual orientation implies to subject, under strict scrutiny, the arguments used by the State to support the legitimacy of the national measures that restricted the same rights.

This is clear in Karner v. Austria,26 about the succession of the surviving same-sex partner in a tenancy. In this case, the ECtHR stated that the protection of the “traditional family” is an important and legitimate reason to justify different treatment based on sexual orientation. However, at the same time, the same Court stated that the Austrian government did not adequately prove the national ingérence (the denial of the right of the surviving same-sex partner) with respect to the purpose (the protection of a traditional family).

For many years, the European Court has abandoned the “individualistic” approach in interpreting Articles 8 and 14 and begun to consider homosexual unions as “family life”. Doing so, the Court has begun to use the ECHR as a “living instrument”; paying more attention to the evolution of the contemporary society; and to the raising an European consensus in favor of a more broad concept of family life.

We can see this approach, in particular in the Schalk and Kopf case,27 in which the European Court greatly enriched the arguments presented to that date. This is a very important decision: first, the parameter used is not only the result of a combined reading of Articles 8 and 14 or because, as said, the ECtHR arrived to a notion of marriage (Article 12), which opens to the discretion of legislator; second, at the supranational level, “marriage” no longer appears as a traditional notion of marriage.

As we have already seen, the European Court links the same-sex relationship to the notion of private-family life (Article 8) and, taking into account the social evolution of the concept of family registered in many States, it states that:

It [would be] artificial to maintain the view that, in contrast to a different-sex couples, a same-sex couples [could not] enjoy the “family life” for the purposes of art. 8.28

Recently, the ECtHR has returned to rule on the issue of the legal recognition of same-sex couples, in the case Vallianatos v. Greece. 29 The Court ruled on an application submitted by a number of Greek same-sex couples, alleging infringement of Articles 8 and 14, because they were excluded—and therefore discriminated against compared to the heterosexual couples—by the Greek law on civil unions, entered into force in 2008.

On its merits, the decision of the ECtHR does not appear innovative. The Court confirms the well-established case law based on the evolutionary interpretation of Article 8 of the European Convention, as asserted in the Schalk and Kopf case. Other aspects, however, can lead us to reflect how interesting are the procedural aspects of this decision. In particular, the attention is to be focused on:

(a)

the fact that the couples of Greek citizens decided to refer the matter directly to the ECtHR, asserting that Greek law does not offer an effective domestic remedy;

 

(b)

the assignation of the case directly to the Grand Chamber of the European Court.

 

With regard to the first aspect, considering the “substantial” meaning that has been the rule of the prior exhaustion of domestic remedies in the European case law, the ECtHR asserts that, in the Greek system, there are no effective remedies available to assert the right protected by Articles 8 and 14 of the European Convention. According to the Court, also Article 105 of the Introductory Law to the Civil Code (that states that “the State shall be under a duty to make good any damage caused by the unlawful acts or omissions of its organs in the exercise of public authority”) cannot be considered as an effective remedy. Likewise, in the opinion of the ECtHR, the Greek constitutional control is not sufficient, because it is not a concrete control.

The European Court does not consider positively the fact that, in the Greek system, as in the Italian one, the ECHR is a source of law superior to the ordinary legislation (Article 28 of the Greek Constitution), as it results from some decisions of the national supreme courts which declared unconstitutional several domestic laws that infringed the European Convention (and so Article 28 of the Constitution that expressly states that international law shall prevail over any contrary provision of the law).

These statements appear slightly “forced”; it seems that, in this case, there has been almost an “invasion of the field”, an overlap of the ECtHR in respect to national judges and, in particular, with respect to constitutional judges.30

With regard to the second aspect—the referral of the case directly to the Grand Chamber—it is known that, according to Article 30 of the European Convention and to Article 72 of its Rules of Procedure, a Chamber may divest its own jurisdiction in favor of the Grand Chamber, where the case raises deep problems of interpretation of the ECHR or is at odds with a previous judgment of the European Court.

The present case, however, does not seem to present both of the hypothesis mentioned above; the decision seems rather to confirm, on its merits, the well-established case law by the ECtHR. Therefore, it appears that, with the referral to the Grand Chamber, the European Court wanted to confer “authoritativeness” to this new way of interpreting the rule of prior exhaustion of domestic remedies.

Within the European system of “multilevel protection of rights”, it conveys that the ECtHR shows the tendency to “centralize”, as much as possible, the judgment of “conventionality” of national laws, exercising therefore, in relation to the recognition of same-sex couples, a tighter control on the discretion of the domestic legislator.

There is also another aspect of this judgment that seems very significant. I refer to the attitude of the judges of Strasbourg in assessing the European growing social consent concerning the recognition of same-sex couples: they materially count the European Countries that introduced a legal protection to same-sex couples.31

According to the European Court, even if it cannot be said that there is homogeneity among European Countries, this growing trend has an impact on the domestic legislation, because it imposes on the State “in a isolated position” the obligation to justify, in a more stringent manner, the choice to not recognize same-sex couples. This means that the ECtHR has to use strict scrutiny on the arguments of the State; therefore, in the absence of “convincing and weighty” arguments, the Court can declare the infringement of the Convention.32

In this judgment, it would seem there is a will to “close the circle” on Article 8 of the ECHR, in order to repair almost the “minimum level” of legal protection for same-sex couples, that, on the basis of a growing European social consensus, could influence the discretion of national legislators. From this point of view, it seems clear, at least, that a national legislator, which intends to introduce a law in order to protect unmarried couples, cannot exclude, from such protection, same-sex couples.

In my opinion, what the ECtHR has decided in the Vallianatos case, does not seem to be entirely contradicted by what the same Court decided in the most recent Hämäläinen case, in July 2014.33

There are different factual requirements between the two cases. In the Hämäläinen case, the European Court assessed the compliance with Article 8 (autonomously and also in conjunction with Article 14) and with Article 12 of the ECHR, of the Finnish legislation concerning sex change of one of the spouses and the protection of the previous family relationship.

In the absence of a law on same-sex marriages in Finland, the sex change of a spouse implied also the change of the same qualification of the family relationship. In order to give recognition to the new sexual identity of the spouse, the Finnish legislator established the automatic conversion of the previous marriage in a registered civil union (i.e. an institution reserved only to same-sex couples that guaranteed, more or less, the same rights that the marriage offered to the heterosexual couples).

The applicants claimed the possibility to maintain, as same-sex couples, the effects of the marriages previously contracted.

Compared to the Vallianatos case, in the Hämäläinen case, the judgment does not concern the illegal exclusion of same-sex couples from the legal protection offered by some institutes like the civil union, but the legal recognition of the right of the same-sex couples to marry. Unlike the position of the applicants in the Vallianatos case, in this case, the applicants, according to the Finnish legislation at the time, could still have a guarantee of their rights, at least through the registered civil unions.34

In my opinion, also for this reason, in the Hämäläinen case, the ECtHR has excluded the violation by the Finnish legislator of the provisions of the European Convention mentioned above, stating that “the current Finnish system as a whole has not been shown to be disproportionate in its effects on the applicant”35 and that there is “a fair balance between the competing interests in the present case”36 (i.e. between the individual’s right to obtain a new sexual identity and the discretion of the legislator to define who can get married).

However, this recent judgment is significant, because once again, the ECtHR recognizes a broad discretion to the domestic legislator, relating to the same-sex marriages.37 This is, as stated by the Court, because there is not a European social consensus on this issue.

From this point of view, the judgment raises some doubts with regard to the “European social consensus approach”.

In the Vallianatos case, the European social consensus theory seems to play an “additional” role, compared to the arguments used by the ECtHR in order to justify the violation by the Greek legislator of Article 8 in conjunction with Article 14 of the European Convention (and then, in order to state the discrimination that the same-sex couples suffered on the grounds of their sexual orientation).

Furthermore, this approach doesn’t exempt the European Court from examining, through strict scrutiny, the Greek government’s arguments.

In the Vallianatos case, then, the social consensus approach would seem to be symptomatic of the evolutionary interpretation of the ECHR. Adversely, in the Hämäläinen case, the lack of the European social consensus concerning same-sex marriages is a central argument for the ECtHR, in order to exclude the violation of the European Convention. The consensus approach, here, is used as “an autonomous hermeneutic criterion”,38 that is difficult to define, and that it seems to be applied, by the European Court, without limits.39

Referring to this issue, it is also to be mentioned that the judgment of the ECtHR has been overcome by the Finnish parliament that, on 28 November 2014, passed a civil initiative to introduce same-sex marriage.

Nevertheless, if we consider the overall activity of the ECtHR regarding the rights of the same-sex couples, we have to give credit to some recent studies that point out how the European Court has become increasingly progressive on this issue and its rulings have increased the likelihood of national policy reforms; even the likelihood of policy reforms of Countries whose laws and policies the Court have not explicitly been found to violate the ECHR.40


2.2 European Supranational Level: The EU Case Law


We can reach a similar conclusion, if we analyze the latest decisions of the ECJ, after the entry into force of Directive 78/2000—which introduced the prohibition of direct and indirect discrimination in the workplace—as well as after the entry into force of the Treaty of Lisbon and also of the Charter of Nice/Strasbourg that now has binding character. I refer specifically to three cases: Maruko,41 Römer 42 and Hay. 43

In the Maruko and Römer cases, the judges of Luxembourg asserted that the German legislator had infringed the Directive 78/2000, because German law denied the right to a survivor’s pension to the surviving same-sex partner (a right guaranteed, however, to heterosexual married couples). For that reason, the German legislator had discriminated on the grounds of sexual orientation for same-sex couples.

In the Hay case, the judges of Luxembourg stated that the French legislator had discriminated against same-sex couples (that have contracted a Pacs), denying them some benefits guaranteed to same-sex married couples, like special leave and award salary in the case of marriage (benefits that, only after 2008, were extended also to the same-sex couples that contracted a Pacs).

In all three cases, in order to verify the existence of any discrimination, the ECJ made a comparison between the situations that, at national level, are comparable.

In the Hay case, in order to assess the discriminatory nature of the national legislation (according to Article 2 of Directive 7/2000), the judges of Luxembourg pointed out that it “is required not that the situations be identical, but only that they be comparable” and that “the assessment of that comparability must be carried out not in a global and abstract manner, but in a specific and concrete manner in the light of the benefit concerned”44 and, regardless of the fact that “national law generally and comprehensively treats registered life partnership as legally equivalent to marriage”.45

However, from the comparison of the three decisions, the judgment in the Hay case appears to be more inclusive and incisive.

Indeed, in the Maruko and Römer cases, a comparison was made between opposite-sex married couples and same-sex couples, that have contracted a Lebenspartnerschaft (the German institution that is, for the same-sex couples, what marriage is for the opposite-sex couples).

In the Hay case, the parameter for comparison is broader, because a comparison is made between married couples and homosexual couples joined in a Pacs. On the one hand, this offers legal protection to the more uxorio cohabiting couples, homosexual or heterosexual couples and it doesn’t produce the same effects of marriages; on the other hand, it is no longer the only “comparable situation” for heterosexual marriages, because the French legislator has “opened” the marriage also to the same-sex couples. As a consequence, the “comparable situation” to the status of worker/spouse ends up covering situations—both legal and factual—that do not depend on peoples’ marital status.

Doing so, the judges of Luxembourg find a discrimination pursuant to Article 2 (2)(a) of Directive 78/2000. More specifically, they asserted that there is a direct discrimination based on sexual orientation, if:

[T]he national rules of the Member State concerned do not allow persons of the same sex to marry, in so far as, in the light of the objective of and the conditions relating to the grant of those benefits, that employee is in a comparable situation to an employee who marries.46

In light of the situation, the potential and the “revolutionary” charge of this decision truly emerges, considering the effects of the decision in Countries where the legislator guarantees the protection of same-sex couples through legal arrangements other than marriage or when, a fortiori, same-sex couples do not have any legal protection, as in the Italian legal system.

Precisely, with regard to these legal systems, the decision of the judges of Luxembourg sounds like a warning: expanding so the concept of “comparable situation”, as has been said, the ECJ seems to “sanction” and remedy, time to time, the omissions of national legislators who discriminate a single worker on the grounds of sexual orientation.47 This is the core of the decision, the “most delicate” and strongest point.

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