Delegitimizing tradition as a “legitimate aim”: inspiration for Strasbourg from California

Perry v. Schwarzenegger, the recent judgment overturning Prop 8, got me thinking about legitimate aims. I believe the European Court of Human Rights could gain valuable insights from that case.

Newspaper readers will be aware that, last week, a federal judge in California rejected the amendment to the California constitution (Proposition 8 ) which banned same sex marriage. What is most interesting from a European perspective is the Californian judge’s masterly and compelling reasoning.

The point I want to highlight today is the way the Californian judge meticulously sets out why certain aims (or in U.S. jargon ‘state interests’) cannot be accepted as legitimate. Specifially, why preserving tradition cannot, in itself, be a legitimate interest. Here is an excerpt from the 136-page (!) judgment (citations omitted, except references to case law):

Proponents first argue that Proposition 8 is rational because it preserves: (1) “the traditional institution of marriage as the union of a man and a woman”; (2) “the traditional social and legal purposes, functions, and structure of marriage”; and (3) “the traditional meaning of marriage as it has always been defined in the English language.” These interests relate to maintaining the definition of marriage as the union of a man and a woman for its own sake.
Tradition alone, however, cannot form a rational basis for a law. Williams v Illinois, 399 US 235, 239 (1970). The “ancient lineage” of a classification does not make it rational. Heller, 509 US at 327. Rather, the state must have an interest apart from the fact of the tradition itself.
The evidence shows that the tradition of restricting an individual’s choice of spouse based on gender does not rationally further a state interest despite its “ancient lineage.” Instead, the evidence shows that the tradition of gender restrictions arose when spouses were legally required to adhere to specific gender roles. California has eliminated all legally mandated gender roles except the requirement that a marriage consist of one man and one woman. Proposition 8 thus enshrines in the California Constitution a gender restriction that the evidence shows to be nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life.
The tradition of restricting marriage to opposite-sex couples does not further any state interest. Rather, the evidence shows that Proposition 8 harms the state’s interest in equality, because it mandates that men and women be treated differently based only on antiquated and discredited notions of gender. (pages 123-124)

Now back to the European Court of Human Rights. The Court deems a difference in treatment discriminatory if it has no objective and reasonable justification, which means that it does not pursue a “legitimate aim” or that there is no “reasonable proportionality between the means employed and the aim sought to be realised”.

Contrary to the Californian judge, the Strasbourg Court has on several occasions deemed the preservation of tradition a legitimate aim. See for example Karner v. Austria (2003), a case that involved tenancy rights for the surviving member of a homosexual couple: “The Court can accept that protection of the family in the traditional sense is, in principle, a weighty and legitimate reason which might justify a difference in treatment.” (par. 40). What happened in Karner (as well as in Mazurek v. France (2000)) was that the Court subsequently found that the rule did not survive the proportionality-test.

Though in the past the Court has also shown skepticism about the value of traditional beliefs as justification for rules (think of classic cases such as Marckx and Inze), the Court has not done a good job of unpacking what an appeal to “tradition” means. This is the more surprising in view of the Court’s commitment to interpreting the Convention, which is a “living instrument”, in the light of present-day conditions.

What I find wonderful about the Californian ruling is that it makes clear that ‘tradition’, in the case of marriage, is shorthand for repressive gender roles. Layer for layer, the Californian court unpeels what is really meant by traditional marriage and family. When you get to the core, you find gender stereotypes and bigotry towards gays and lesbians.

What I am pleading for is that the Strasbourg Court adopt a similar kind of critical approach to the justifications states put forward for their actions: what Yoshino terms a “reason-forcing conversation”. The Californian court makes it clear that an attempt to justify a rule by an appeal to tradition is tautological. Surely, the “living instrument” doctrine allows for a more penetrating and forward-looking approach by the Strasbourg Court to what does and does not constitute a legitimate aim.

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