European High Court Says No “Right” to Same-Sex Marriage: What Does This Mean for the US?

No "Right" SSM

By Joseph La Rue, Legal Counsel

As the debate over the definition of marriage rages across the states, the European Court of Human Rights (kind of like a “Supreme Court of Europe”) has decided that the European Convention on Human Rights (kind of like our Constitution) does not require that nations recognize same-sex marriage.

This is a monumental decision, and could have a major impact as our Supreme Court is expected to take up a marriage case in the coming term.

Our Supreme Court Justices have looked to this court before; in fact, Justice Kennedy relied upon the European Court of Human Rights when deciding the Lawrence case that ruled the ban on sodomy unconstitutional.

The facts:

  • Man marries woman; Man decides he’s female; Man has “sexual reassignment surgery” to “become” female; Man tries to change his legal status to female.
  • Finland has law restricting marriage to one man one woman  unions; Finland declines to change Man’s legal status unless Man and Woman agree to dissolve their marriage and enter domestic partnership; Man and Woman do not want to do that, arguing that divorce is against their religion and their children would be disadvantaged, having lesser status than they do as the children of a married couple.
  • Man and Woman therefore demanded to have Man’s legal status changed to female while leaving Man and Woman in a marriage, even though Finland does not recognize marriages between two females.

The Court held by a 14-3 vote that the European Convention on Human Rights does not require countries to recognize same-sex marriages. 

The Court affirmed an earlier decision that there is no “right” to same-sex marriage. This would be comparable to SCOTUS issuing an opinion that says, “We meant what we said in our case from 1972, Baker v. Nelson, that there is no equal protection problem if states choose not to recognize same-sex marriage.  They didn’t have to recognize same-sex marriage in 1972, and they still don’t.”

One reason the European Court said it reached its decision had to do with the fact that there was no ‘European consensus’ regarding same-sex marriage.  Ten countries recognize it; 37 do not.  The Court concluded that it would be better to let the debate continue than to impose a ‘one size fits all’ solution on all 47 countries in Europe.

Not surprisingly, this ground-breaking decision from Europe has escaped the notice of the mainstream media. However, you can read more about it here:

What does this mean for the US? It remains to be seen. However, this decision supports our argument that same-sex marriage is not a fundamental right.  It would therefore be good for our courts to do as the European Court did.  Our courts should let the debate continue, and not try to impose a fifty-state solution on the American people.

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Author: Alliance Defending Freedom