Same-Sex Marriage in National and International Courts: Principle vs. Consensus

April 3, 2018 at 12:15 pm – 1:15 pm

The Transnational Legal Initiative, in partnership with Rutgers Center for Gender, Sexuality, Law and Policy, welcomes Robert Wintemute, Professor of Human Rights Law, King’s College London, for a lunch lecture, “Same-Sex Marriage in National and International Courts: Principle vs. Consensus,” on Tuesday, April 3, 2018.

International human rights tribunals and the highest national courts in federal systems face a common dilemma.  When deciding whether an international human rights treaty or a federal constitution protects a particular right, or prohibits a particular form of discrimination, should they approach the question purely as one of human rights or constitutional principle, regardless of how many countries or federal units will be affected by their decision?  Even if 100% of the countries or federal units have legislation violating a particular principle, should tribunals or courts simply “do their job” by saying so, regardless of the potential for a political backlash?  Or should they look for a legislative, judicial, political or social consensus supporting their decision, evidenced by voluntary legal changes (not yet required by the international treaty or federal constitution) in at least a majority of the states parties to the treaty, or a majority of the units of the federal system?
If legislatures or the highest courts of only a minority of the treaty states or federal units have introduced the changes, should international human rights tribunals or highest national courts abstain from declaring a new human or constitutional right, until the level of consensus has risen?  I will consider the example of same-sex marriage, a human rights issue that has been considered by the US Supreme Court, the European Court of Human Rights, the Court of Justice of the EU, and the Inter-American Court of Human Rights.  These courts have reached strikingly different conclusions regarding the need for consensus.  The same issue could reach the United Kingdom Supreme Court from Northern Ireland (should the UKSC look for a European consensus, a British consensus, or neither?).

Law Lecture and Staff Headshots at the KCL Strand Campus on the 23/01/2014. Photo: David Tett

Robert Wintemute is a Professor of Human Rights Law at King’s College London, England, who has worked extensively on issues of international sexual rights. His pro bono legal work in the European Court of Human Rights has included drafting, on behalf of NGOs, amicus curiae briefs on international and comparative LGB human rights law in such cases as Karner v. Austria (2003), E.B. v. France(2008), Schalk & Kopf v. Austria (2010), X & Others v. Austria (2013), Vallianatos & Others v. Greece (2013), and Oliari & Others v. Italy (2015).  He was also the lawyer for the applicants in Taddeucci & McCall v. Italy (2016). In the Inter-American Court of Human Rights, he has served as an expert witness in Atala Riffo v. Chile (2012), Duque v. Colombia(2016), and Flor Freire v. Ecuador(2016).  At the national level, he has supported same-sex marriage cases in the Supreme Court Judicial Court of Massachusetts (Goodridge, 2003), the Supreme Court of Argentina (dismissed after Congress changed law in 2010), and the Constitutional Court of Colombia (2016).

In August 2016, he was one of five candidates interviewed for the new position of United Nations Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity.

Professor Wintemute holds a B.A. fromthe University of Alberta, a law degree from McGill University, and a doctorate from the University of Oxford.