Dr. Eugenia Relaño Pastor is a Senior Research Fellow in the Department of Law and Anthropology at the Max Planck Institute for Social Anthropology, Halle (Germany).
“When the heart speaks, the mind finds indecent to object.”
(Milan Kundera, The Unbearable Lightness of Being)
The exclusion of same-sex couples from the right to marry remains a reality in some EU Member States. But increasing recognition of same-sex marriage and/or same-sex registered partnerships by European legislatures as well as national and supranational courts shows a step forward for the rights of same-sex couples.
The United States and Europe have faced a similar divergence of public opinion and judicial decisions regarding same-sex marriage, so similar in fact that the European Court of Human Rights (ECtHR), frequently referred to as the Strasbourg Court, in Oliari and Others v. Italy devoted substantial attention to the Supreme Court of the United States (SCOTUS) opinion in Obergefell v. Hodges. In Oliari, the Strasbourg Court specifically highlighted the following SCOTUS points:
First, ‘the marriage laws enforced by the respondents were unequal as same-sex couples were denied all the benefits afforded to opposite-sex couples . . . .’
Second, the ‘denial to same-sex couples of the right to marry worked a grave and continuing harm and the imposition of this disability on gays and lesbians served to disrespect and subordinate them.’
Third, ‘the right to marry was a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.’
There are striking similarities in the legal reasoning found in the cases mentioned above that show common trends in the U.S. and Europe. Both the Strasbourg Court and the U.S. Supreme Court agree that individuals need not await legislative action before asserting a fundamental right; both Courts rely on legal arguments that reflect an evolving and postmodern interpretation of marriage, and finally, both show (particularly in Obergefell) some confusion about what is really at stake—the right to marry or the protection of a classical Lockean notion of marriage (according to the Founding Fathers) and traditional family life (Art. 8 of the European Convention of Human Rights)?
The judicial interpretations of the fundamental right to marry in both courts reflect evolving attitudes towards marriage under the paradigm of postmodern democratic societies. As noted by French philosopher and sociologist Gilles Lipovetsky, homo politicus has died; homo psychologicus is born. Feelings and subjectivity have widened their perimeter to encompass aspects that were previously outside the legal domain. This trend is not new. Before Rousseau, sincerity was a value to which hardly anyone aspired—rather, the most important value was being virtuous. But with Rousseau and Goethe, sincerity took its place of relevance among social values until finally installed in the core of our worldviews after World War II.
In the legal world, the U.S. Supreme Court previously addressed the sincerity of an appellant’s religious beliefs in Sherbert v. Verner, 374 U.S. 398 (1963). In Sherbert, the Supreme Court analyzed the pertinence of deeply held religious convictions for adjudicating the Free Exercise Clause of the First Amendment. After Sherbert, sincerity entered the courtroom, and it has become a blurred notion that each person fills according to his or her own subjectivity. Currently, sincerity is a key factor in addressing identity and dignity claims before the judicial bench.
The subjective postmodern approach can be found in both Obergefell and ECtHR case-law when addressing the highly contentious issue of same-sex marriage. In Obergefell, SCOTUS advanced four principles and traditions that demonstrate why marriage, as a fundamental right under the U.S. Constitution, applies with equal force to same-sex couples:
(1) The “right to personal choice regarding marriage” which “is inherent in the concept of individual autonomy”;
(2) the right to enjoy intimate association;
(3) the right to safeguard children and families and other related rights of childrearing, procreation, and education; and
(4) “marriage is a keystone” of the nation’s social order, and same-sex couples cannot be “denied the constellation of benefits that the States have linked to marriage.”
From these principles outlined in Obergefell, two judicial approaches, entrenched in Obergefell’s legal reasoning as well as in the ECtHR’s jurisprudence, can be identified: a libertarian-dignity approach and an institutional-equality approach.
The Right to Marry: A Libertarian-Dignity Approach
This approach underlines the values of liberty, self-determination, identity, and dignity. In the Obergefell majority opinion authored by Justice Anthony Kennedy, the Court held that the right to marry is protected by the U.S. Constitution as an individual fundamental right inherent in the liberty of the person. Justice Kennedy relied on previous court decisions to conclude that “courts [must] exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect.” Those interests are certainly personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs. As a result, new generations reveal new insights for the definition of “liberty” grounded in contemporary postmodern worldviews.
Justice Roberts’s and Justice Alito’s dissenting opinions tried to persuade the opposite: same-sex couples do not seek the protection of “a deeply rooted right but the recognition of a very new right.” When comparing these contrasting understandings of liberty and the right to marry, the Strasbourg Court aligned itself with the majority opinion in Obergefell. Despite the fact that neither the Charter of Fundamental Rights of the European Union, nor the European Convention on Human Rights (ECHR), explicitly establish such a right, the ECtHR clarified that Article 12 of the ECHR does not require or prohibit the inclusion of same-sex couples within the scope of the right to marry.
This principle was outlined in the judgment of Chapin and Charpentier v. France in 2016. Previously, in Schalk and Kopf v. Austria the ECtHR had recognized that same-sex couples are “in a relevantly similar situation to a different-sex couple as regards their need for legal recognition and protection of their relationship.” Although this principle did not necessitate same-sex couples’ access to marriage, as clarified in Oliari, Member States have a positive obligation to provide them with some form of recognition in order to avoid breaching Articles 8 and 14 of the European Convention. Therefore, the rights of the European Convention need to be understood from an evolving re-interpretation of rights, according to the same demands of pluralism, tolerance, and broadmindedness that inspired the European Convention of Human Rights (see Handyside v. The United Kingdom).
The right to marry is also attached to an individual’s dignity. Not only are questions of whether and whom to marry among life’s momentous acts of self-definition, but also, as the U.S. Supreme Court noted, “there is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices.”
Although there is not a “Dignity” Clause in the U.S. Constitution, nor in the ECHR, both courts find no legal obstacle to protecting the human dignity of men and women when it is at risk. In Obergefell Justice Kennedy, poetically, wrote that “dignitary wounds cannot always be healed with the stroke of a pen,” but individuals “can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act.” These words echo the ECtHR’s legal reasoning when dealing with cases regarding the right to marry by transsexual applicants. In Goodwin v. The United Kingdom the Strasbourg Court maintained that the right of a man and woman to marry found in Article 12 could not refer to a “determination of gender by purely biological criteria,” and since dignity as a concept plays a fundamental role in the “protection given to the personal sphere of each individual,” therefore “the right to establish details of their identity as individual human beings” falls under Article 8 of the Convention.
The Protection of Marriage: An Evolving Institutional-Equality Approach
By the same logic that the right to freedom of religion is not simply the right to have one particular religion, one could say that the right to marry is not the same as the right to a particular kind of marriage. Should states protect marriage as an institution, regardless of which particular understanding is assigned to “marriage” either through judicial or legislative processes? Or should states protect the right to marry because it is an individual fundamental freedom as the U.S. Supreme Court reiterated in Obergefell and the ECtHR shows in its jurisprudence? These courts diverge on this issue. One’s logic falls under the fundamental right to liberty, the other’s under the fundamental right to equal treatment.
For centuries states have contributed to the fundamental character of marriage by placing it at the center of legal and social order. The U.S. Supreme Court echoed Tocqueville when explaining that “marriage is the foundation of the family and of society, without which there would be neither civilization nor progress.” Since there is a legitimate state interest in preserving the institution of marriage, the Court reflected, and marriage is an evolving institution, new insights to strengthen such an institution, not to weaken it, should be taken into consideration.
These new insights and societal understandings have revealed unjustified inequality within this fundamental institution “that once passed unnoticed and unchallenged.” Thus, both the U.S. Supreme Court and the European Court of Human Rights agree that same-sex couples should no longer be denied all the benefits afforded to opposite-sex couples. Indeed, one year after Obergefell, the European Council included in the 2015 Annual Report on Human Rights and Democracy in the World the legalization of same-sex marriage in the United States as an “important milestone” in the “progress towards equality” for LGBTI people.
In defining the right to marry, courts in the United States and across Europe have identified essential attributes of that right based on history and tradition. As ECtHR stressed in Oliari “even assuming that the difference in treatment may be considered to be aiming at ‘the protection of the family in the traditional sense,’ given the Court’s evolving case-law . . . it would be unacceptable to frame restrictions on the basis of sexual orientation as aimed at protecting public morals.” Although the Strasbourg Court in Oliari indicated that Member States have a positive obligation to provide some form of recognition to same-sex couples and that the most appropriate way must be left within the margin of appreciation of State Parties, the doctrine of the margin of appreciation cannot justify unequal treatment in relation to Article 12 of the Convention. The Strasbourg Court noted in its Taddeucci judgment that protecting the traditional family alone does not constitute an objective and reasonable justification to exclude non-married couples from certain rights and entitlements in situations where states deny any form of recognition to same-sex couples.
In his Obergefell dissent, Chief Justice John Roberts quoted William Faulkner, saying, “The past is never dead. It’s not even past.” His allusion reminds us that “to blind yourself to history is both prideful and unwise.” In contrast, writing for the majority Justice Anthony Kennedy highlighted that if “rights were defined by who exercised them in the past, then . . . new groups could not invoke rights once denied.” The exchange of different views among the U.S. Supreme Court’s justices resembles the different approaches taken in the Strasbourg Court’s jurisprudence.
Both courts are influenced by a postmodern worldview in which everything is subject to both continuity and change: even the history of marriage does, too. While some may disagree that courts, not legislators, should resolve this issue (see Mark Hill’s post in this conversation), and some may fear that their religious freedom may suffer, the Obergefell majority seemed to agree with Derrida, who noted that recognition of the past is not possible if that prevents new groups from accessing rights on equal footing. While reading Hölderlin, Derrida described memory as an “impossible mourning” or “mourning in default.” In these circumstances individuals who are willing to keep the memory of an unchangeable, traditional concept of marriage enjoy the same moral authority as those who embrace a new notion of marriage.
Ultimately, marriage is among life’s momentous acts of self-definition that “embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.” Provided that choice and autonomy are the new paradigm in postmodern times, as noted in Obergefell, “choices about marriage shape an individual´s destiny.”
 European Commission, Eurobarometer on Discrimination 2015: Social acceptance and perceptions on discrimination on the grounds of sexual orientation and gender identity, October 2015, p. 6, available at http://ec.europa.eu/justice/discrimination/files/eurobarometer_lgbti_graphs_factsheet_national.pdf (accessed on June 12, 2020).
 Sixteen out of twenty-eight EU Member States (namely, Austria, Belgium, Denmark, Finland, France, Germany, Iceland, Ireland, Luxembourg, Malta, the Netherlands, Norway, Portugal, Spain, Sweden, and the United Kingdom) recognize the right to marry for same-sex couples. Eighteen Member States (Andorra, Austria, Belgium, Croatia, the Czech Republic, Finland, France, Germany, Hungary, Ireland, Liechtenstein, Luxembourg, Malta, the Netherlands, Slovenia, Spain, Switzerland, and the United Kingdom) authorize some form of civil partnership for same-sex couples. https://europa.eu/youreurope/citizens/family/couple/marriage/index_en.htm.
 Oliari and Others v. Italy, par. 65.
 Obergefell v. Hodges, 135 S. Ct. 2584, 2634 (2015) (J. Thomas, dissenting).
 Oliari, “Nevertheless, even assuming that the difference in treatment may be considered to be aiming at ’the protection of the family in the traditional sense,’ given the Court’s evolving case-law they considered that it would be unacceptable to frame restrictions on the basis of sexual orientation as aimed at protecting public morals,” par. 120.
 Gilles Lipovetsky, L’ère du vide : Essais sur l’individualisme contemporain, Gallimard (1983).
 The roots of postmodernity, fully emerging in the 1980s, can be placed in the cultural landscape of Western societies after the Second World War. See Umberto Eco, Apocalittici e integrati (1965); Jacques Derrida, Writing and Difference (1967); Jean-François Lyotard, The Postmodern Condition (1979); and Zygmunt Bauman, Liquid Modernity (2000).
 Obergefell at 2599.
 Obergefell at 2599 (‘[T]he right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.’).
 Obergefell at 2600.
 Obergefell at 2601.
 Obergefell at 2604.
 Obergefell at 2598.
 See, e.g., Loving v. Virginia, 388 U.S. 1, 12 (1967) (invalidating bans on interracial unions); Turner v. Safley, 482 U.S. 78, 95 (1987) (holding that prisoners could not be denied the right to marry); see also Eisenstadt v. Baird, 405 U.S. 438, 453 (1972); Griswold v. Connecticut, 381 U. S. 479, 484–486 (1965).
 “What [those arguing in favor of a constitutional right to same sex marriage] seek, therefore, is not the protection of a deeply rooted right but the recognition of a very new right, and they seek this innovation not from a legislative body elected by the people, but from unelected judges,” Obergefell, 135 S. Ct. at 2640 (J. Alito, dissenting) (quoting United States v. Windsor, 570 U.S. 744, 809 (2013) (J. Alito, dissenting)).
 Art. 9 neither prohibits nor imposes the recognition of same-sex marriage. However, the Explanations of the EU Charter clarified that this wording was chosen to cover “cases in which national legislation recognizes arrangements other than marriage for founding a family,” Explanations Relating to the Charter of Fundamental Rights, O.J. C303 of 14 December 2007, p. 21
 Schalk and Kopf v. Austria, par. 99.
 Obergefell at 2599 (“The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation.”).
 Obergefell at 2606.
 Id. at 2605.
 Goodwin v. United Kingdom, par. 89. See also Hämäläinen v. Finland, Application no. 37359/09, judgment of 16 July 2014, where the issue of access to marriage for same-sex couples overlapped with that of the recognition of the legal effects of gender reassignment surgery in the field of marriage.
 International law of human rights and democratic legal systems do not protect religions per se (see the debate around the defamations of religions in UN). Freedom of religion is protected because it is a choice of individuals to believe or not to believe, to have or not to have a religion.
 Obergefell at 2601 (quoting Tocqueville).
 See id. at 2596.
 Id. at 2603.
 Oliari, par 120.
 See Eyal Benvenisti, ‘Margin of Appreciation, Consensus, and Universal Standards,” 31 N.Y.U. J. Int’l L. & Pol. 843 (1999).
 Taddeucci and McCall v. Italy, par. 94.
 Obergefell, 135 S. Ct. at 2623.
 Obergefell at 2623.
 Obergefellat 2602.
 Jacques Derrida, Mémoires pour Paul de Man (Éd. Galilée 1988), 27.
 Obergefell at 2608.
 Obergefell at 2599.