—James Fowkes, University of Münster Faculty of Law
[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2018, see here.]
Amidst the talk of global crises of liberal constitutionalism and the rights-based causes of the progressive elite, it is worth taking a moment to pause and take a trip back to the most successful ever year for that banner progressive cause, same-sex marriage.
The trip is a short one, because there is a good argument that the year in question is 2017: the year of Trump and Brexit, of 34% of the vote for Marie le Pen and 12.6 % for the AFD, of populism and nationalism and xenophobia, and of progressives switching from progress to holding the line. And this, I want to suggest, is an instructive little data point to think about when we are trying to make up our minds about the state of the world.
In 2017, same-sex marriage legislation came into force in Finland, and was passed and came into force in Malta, Germany and, after a voluntary postal survey that turned out to signal 61.6% support, in Australia. Same-sex marriage was recognized by judicial decision in Austria, and by judicial decision, suspended for two years to give Parliament time to act, in Taiwan – the first national recognition of same-sex marriage in Asia, albeit a pending one.
Maybe Finland should instead be allocated to 2015, when the legislation was actually passed, and Taiwan kept out of the count until the legal effect of the judicial decision is felt. But even without those two, 2017 would be tied (with 2013) for the year in which the most new states joined the marriage equality fold.
2017 also saw the European Court of Human Rights take another cautious slice out of the margin of appreciation by ruling that signatory states must recognize same-sex marriages performed in other states, although they may recognize them only as civil unions. And to cherry the sundae, though not of course a final judgment nor one directly about same-sex marriage, 2017 also saw a strong signal from Indian Supreme Court justices that they will revisit the 2015 judgment in Naz Foundation upholding the criminalization of sodomy.
This pattern cannot be dismissed as a fluke. More than half of the countries that have recognized same-sex marriage have done so in the last five years. And while it is in the most literal sense early days for 2018, the signs thus far are not of a weakening trend. Although the European Court of Justice has yet to issue its decision, Advocate-General Wathelet has taken the position that EU citizens who conclude same-sex marriages with non-EU citizens are entitled to have these recognized for residency purposes by all EU member states, regardless of whether the state recognizes such unions in its own domestic law. And on January 10, the Inter-American Court of Human Rights issued a sweeping advisory opinion holding that the American Convention on Human Rights obliges all signatory states to recognize same-sex marriage. (The opinion also includes important rules on the rights of transgender persons). The ruling is more significant than its status as an Advisory Opinion can make it appear, since mechanisms such as conventionality control mean that the Inter-American Court’s interpretations powerfully affect member state domestic law.
All this is far from evidence that same-sex marriage will cover the globe any time soon. What I am interested in here, instead, is what it might tell us about the narrative of crisis that haunts so much current constitutional and political discussion.
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