On June 26, 2015 the Supreme Court of the United States issued its momentous opinion in Obergefell v. Hodges. Only a few SCOTUS decisions have provoked such strong debate over the majority’s arguments and its understanding of human dignity or the nature of judicial power. In this blog conversation, American and European legal scholars and lawyers reflect on the postmodern understanding of marriage that inspired the decision and on the consequences of Obergefell for promotion of LGBTI-people’s rights, on religious exemptions, on democracy in the United States, on children’s rights, on the European Court of Human Right’s jurisprudence, and on the search for the compromise between religious freedom and anti-discrimination claims. This variety of reflections, both positive and critical, illustrates how the decision has become an important episode in American and global legal and human rights history. Continue reading “Obergefell v. Hodges: Five Years Later”
Professor Mark Hill QC is an adjunct professor at Cardiff University, Pretoria University, Notre Dame University Law School, Sydney and King’s College, London; and is a fellow at the Center for the Study of Law and Religion at Emory University, Atlanta. He practices at the Bar in London and sits as a judge on the Midland Circuit.
The hallmark of good judgments is their brevity. Short sentences promote clarity. The best sentence in Obergefell v. Hodges is written by Chief Justice Roberts. It comprises seven words: “But this Court is not a legislature.” Unfortunately Roberts’s was a dissenting opinion. By a majority of 5:4, the US Supreme Court effectively legislated to permit gay marriage. I am not opposed to same-sex marriage. On the contrary, I am a champion of LGBT+ rights. Nor am I opposed to judicial activism. The common law is the better for the occasional gentle nudge. My unease, viewed from the UK, is with the starkness of the outcome and its failure to accommodate religious sensibilities. As Justice Scalia remarks in his barnstorming dissent, the consequence of the decision was that the people of America lost “the freedom to govern themselves.” Continue reading “Judicial Overreach and Reasonable Accommodation: Some British Reflection on the US Supreme Court Decision in Obergefell v. Hodges“
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: Continue reading “Postmodern Marriages for Postmodern Times: The Obergefell Case and the Strasbourg Court’s Jurisprudence”