—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.[1]
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.[2] 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.[3]
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.[4] 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).[5] 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.[6]
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.
Since the crisis narrative is often, in fact, a narrative about a handful of countries, it is significant that two of those countries are on the 2017 list. Germany’s presence is a point against the argument that recent political trends would move German politics dangerously rightwards. And the same goes even more strongly for Austria, since 2017 is the same year in which the (far) right-populist Freedom Party (FPÖ) won just one seat less than the Social Democrats and became the junior partner in the conservative Kurz government.
The same-sex marriage trend is equally significant in reminding us of all the countries that are often left out of the calculation of liberal constitutionalism’s supposed crisis. Taiwan’s significance in broader Asia is easy to minimize. But if we learn a lesson from the European case especially, we might do better to look for sub-regional stories. We might then add the Taiwanese decision to the limited municipal recognition of same-sex marriage in Japan and the as-yet inconclusive but significant moves in South Korea, and talk about a possible new branch of the same-sex marriage trend opening up in the richest of the Asian Tigers, that might spread along the Pacific seaboard as and if the wealth and education do.
Similarly, Latin America – the first region in the world where a majority of the population enjoyed equal access to marriage – is now also the first regional system to decide that same-sex marriage is not an issue about which member countries can reasonably disagree. The Inter-American Court’s ruling puts it ahead of the country-by-country consensus:
Only four of the 23 member countries to which the ruling applies (Argentina, Brazil, Colombia and Uruguay) currently recognize same-sex marriage. Only seven have some form of recognition (adding in the civil unions in Ecuador and Chile, plus the partial state and local recognition in Mexico and the movement towards national recognition of same-sex marriage following a series of Supreme Court decisions there).
A comparably bold move from the ECHR would probably make many friends of Europe nervous, just as the roughly comparable boldness of Obergefell now means that same-sex marriage discussion in the US is dominated by fears of a religious freedom-based backlash. But while that may say something about Europe or about the US, it also says something about the broader global picture that the Inter-American Court’s decision is not easily dismissed as reckless, though of course the reaction to it largely remains to be seen. The same-sex marriage trend may have found its current safest home, in regional terms, outside the ‘West’.
It may be that same-sex marriage is special. It may just be the idea of the moment which, in the parts of the world where it exists at all, has by now acquired that mysterious but unstoppable status of an idea whose time has come. And maybe, therefore, it tells us little about other issues. Maybe the rightward trend in Europe is perfectly real and has merely come to live with at least one word ending in ‘-q’ because at least LGBTIQ isn’t Arabic. Maybe Taiwan will prove an outlier, as South Africa has now been for twelve years in Africa; maybe the West and Latin American trends are just completing themselves. Maybe the wave reached highest in 2017 because it is just about to break.
All this is plausible; I predict no futures. But based on what we do know, we should consider the possibility that the pressure not to miss the next 1930s is causing some to reach for a pessimism that is no more – or less – supported by the global facts than is sunny optimism. Arguing that the picture is more mixed, when considered in truly global perspective, is not hedging. If we care about rising to meet crises, we also have to care about deciding their real extent and when they are not truly looming. And we have to recognize that the thrashing out of social disagreements across the political mechanisms of the globe is too gloriously messy, most of the time, for crisis narratives to fit.’
Suggested citation: James Fowkes, Crisis and its Opposite: A Reminiscence of Same-Sex Marriage’s Most Successful Year, Int’l J. Const. L. Blog, Jan. 31, 2018, at: http://www.iconnectblog.com/crisis-and-its-opposite-a-reminiscence-of-same-sex-marriages-most-successful-year-i-connect-column/
[1] Same-sex marriage was recognized in 2013 in Brazil, France, New Zealand and Uruguay.
[2] Orlandi v. Italy, 26431/12 (14 December 2017).
[3] Puttaswamy v. Union of India, Writ Petition (Civil) No. 494 of 2012 (24 August 2017), commenting on Koushal v. Naz Foundation, Civil Appeal No. 10972 of 2013 (11 December 2013). For a helpful explanation of the significance of the comments in Puttaswamy, see Guatam Bhatia, ‘The Indian Supreme Court’s “Curative” Hearing in the “LGBT case”, Oxford Human Rights Hub, http://ohrh.law.ox.ac.uk/the-indian-supreme-courts-curative-hearing-in-the-lgbt-case/ (30 October 2017).
[4] Opinion of Advocate General Wathelet in Case C-673/16 (provisional, 11 January 2018),
http://curia.europa.eu/juris/celex.jsf?celex=62016CC0673&lang1=en&type=TXT&ancre=.
[5] Advisory Opinion OC-24/17 of November 24, 2017. Series A No. 24 (9 January 2018). The opinion is currently only available in Spanish; for legally detailed English commentary see e.g. Leiry Cornejo Chavez, ‘The Inter-American Court of Human Rights has spoken about gender identity and non-discrimination against same-sex couples. Would states listen?’, LatAm Working Group Blog, https://blogs.eui.eu/latin-american-working-group/inter-american-court-human-rights-spoken-gender-identity-non-discrimination-sex-couples-states-listen/ (16 January 2018); ‘Inter-American Court: States must recognize gender identity, same-sex marriage’, International Justice Resource Centre, http://www.ijrcenter.org/2018/01/16/inter-american-court-states-must-recognize-gender-identity-same-sex-marriage/ (16 January 2018).
[6] See e.g. Eduardo Ferrer Mac-Gregor, ‘The Conventionality Control as a Core Mechanism of the Ius Constitutionale Commune’ in Armin von Bogdandy et al (eds) Transformative Constitutionalism in Latin America: The Emergence of a New Ius Commune (2017).
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