European high court: There is no right to gay marriage

Further proof that Obama’s outlook really is European: They have the same view of gay marriage as he (supposedly) does.

Seven judges at the European court ruled unanimously that two Austrian men denied permission to wed were not covered by the guarantee of the right to marry enshrined in Europe’s human rights convention.

The judges acknowledged “an emerging European consensus” that same-sex couples should have legal recognition but said individual states may still decide what form it should take because marriage had “deep-rooted social and cultural connotations which may differ largely from one society to another.”…

Gay rights groups applauded the finding that marriage must not necessarily be limited to people of the opposite sex, along with the court’s ruling that gay couples are covered under charter definitions of family life.

It’s a federalist decision, in other words, eschewing a single top-down solution so that individual member states — some of which are liberal, some more conservative — can choose the marriage system that works best for them. What a novel idea. As the court’s own press release puts it: “The Court underlined that national authorities were best placed to assess and respond to the needs of society in this field, given that marriage had deep-rooted social and cultural connotations differing largely from one society to another.” In fact, I recommend reading the whole release, as there are other nuances to the decision that the AP summary doesn’t touch on. For instance, while Austria doesn’t allow same-sex marriage, it does allow for domestic partnerships. The question for the court, then: If a nation-state creates an “alternative form” of marriage like civil unions, does that mean it has to go the whole nine yards and permit actual marriage too? Nope, says the court, although in part that’s because the plaintiffs evidently didn’t press that argument too much.

You know what the most intriguing part of this is? If/when Ted Olson’s Equal Protection challenge to Proposition 8 makes it to the Supremes, it’s going to put the liberal justices who support consulting foreign law for “guidance” (and yes, that most definitely includes Kagan) in a bind. Normally, European courts are the first ones they turn to when looking for precedents to provide legal cover for their own political preferences, i.e. to “guide their reading of the Constitution,” but this decision is a big ol’ stink bomb in that plan. In fact, expect Scalia and Thomas, both of whom adamantly oppose using international case law, to gleefully torment them with it. Are the foreign-law fans ready to follow European precedent in this case too, or will they suddenly decide that foreign law’s not that important after all? I know which way I’m betting.

Update: The blockquote alludes to this in noting how happy gay-rights activists are about the decision, but a commenter below spells it out further: Because the court did find that same-sex relationships qualify as “family life” for purposes of the European charter, it looks like member states are required to provide some form of legal recognition for those who want it. Doesn’t have to be marriage, but it sounds like at a minimum that domestic partnerships have to be on the menu legally.