STOCKHOLM, Sweden – A crucial case on marriage and family set to be heard by the European Court of Human Rights offers the increasingly controversial institution a chance to undo an error committed a decade ago and stop what Malta’s high court called “social engineering,” according to the European Center for Law and Justice.
Experts say even the U.S., embroiled in its own battle over same-sex marriage, could be affected by the ruling.
The case, Joanne Cassar vs. Malta, centers on a “transgender” person – a man who underwent surgery in 2005 to resemble a woman – seeking government recognition and sanction of a “marriage” to another man.
Following appeals, the deeply Catholic island nation in the Mediterranean Sea eventually refused to grant the plaintiff permission to marry a male partner.
For Cassar, however, the decision was unacceptable. Last summer, Cassar sued the government of Malta with the ECHR, claiming that a “right to marriage” outlined in the European Convention on Human Rights had been violated.
The European rights court in Strasbourg, which ruled in the landmark 2002 Goodwin vs. United Kingdom judgment that marriage could not be based on biological sex, eventually agreed to hear the case. The outcome, however, is far from certain.
Malta’s constitutional court clearly acknowledged the decade-old marriage ruling by the ECHR, which stated that the European court was “not persuaded that at the date of this case it can still be assumed that these terms [man and woman] must refer to a determination of gender by purely biological criteria.”
However, Malta’s high court refused to apply the ECHR ruling in the Cassar case, arguing that the nation was not bound by the European decision, because the ruling was “social engineering” based on dubious notions of evolving societal norms, not law.
“Transgender people have a medical issue, they need their life to be easy – not too complex – and Malta is ready to do as much as possible to facilitate their daily life in many aspects,” European Center for Law and Justice Director Grégor Puppinck told WND in an interview.
“But when dealing with the issue of marriage and family, the court has to say that the right to marry and form a family is only one right – it’s not two rights – and there is no sense to force a state to give a right to marriage to somebody who does not meet the criteria,” he continued.
Puppinck was referring to the clear language in article 12 of the European Rights Convention.
“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right,” it states.
According to the ECLJ, which recently filed a third-party brief in the case asking the European court to reverse its controversial 2002 decision, the right to marriage and to found a family are intrinsically linked as one right. And national governments must have the power to protect the institution of marriage by law.
“The Cassar case would be very simple to resolve if we still had a clear understanding of marriage and the role of the court,” the ECLJ brief states. “This case gives the court on opportunity to remold its jurisprudence on a solid foundation.”
The ECHR, charged with ensuring that the Council of Europe’s more than 40 member states respect the European Convention on Human Rights, had been asked since the 1980s to grant marriage rights to transgender people. It consistently refused.
After ruling on multiple occasions that there was no right for transgender or homosexual people to marry under article 12, however, the court changed its case law through the 2002 Goodwin case. The court ruled that the terms “men” and “women” did not necessarily refer to biological sex. Instead, the ECHR declared, sex could also be determined by so-called “social” identity.
With the ruling, the ECHR purported to impose the highly controversial gender theory on all member states. The court also severed the crucial relationship between the right to marry and the right to form a family – the true purpose of societal recognition and protection of marriage, according to human rights experts.
More importantly, analysts say the ruling removed the universal and objective character of human rights, making them subjective. That determination could eventually lead to the complete destruction of the entire basis and philosophy underpinning human rights, ECLJ said.
“The authority of human rights is derived from their reflection of man’s nature; they are the result of what man is,” the non-profit group noted in its amicus curia brief filed with the court in June, adding that the concept is meant to guarantee the exercise of human capacities – prayer, speech, thought, formation of a family, and more. “Thus, human rights are not arbitrarily defined according to the will of an individual concerning each subject.”
Critics called the 2002 ruling an egregious example of “judicial activism” for the so-called “progressive” cause. Member states, however, have since been pressuring the transnational court to stop imposing its wild interpretations on Europe; and its authority was widely perceived as diminished in the wake of controversial rulings purporting to reinterpret the human rights convention.
Apparently the pressure had an effect, and analysts say the ECHR – after a “crisis” period – is in the process of reform. The court is now engaged in less activism than it was a decade ago because of member states demands.
According to the ECLJ, the Maltese high court ruling, which directly accused the European court of “social engineering,” offers the ECHR a perfect opportunity to undo its controversial 2002 ruling and respect the text of the rights convention.
“We are conscious of the problems of transgender people,” acknowledged ECLJ chief Puppinck, whose organization is asking the court to reverse its Goodwin ruling for several reasons. “But the court of Strasbourg cannot accept the gender theory and re-interpret the convention against its meaning.”
Puppinck explained that so-called “gender theory” is “purely a sociological theory” concocted by ideological sociologists. Essentially, it claims that gender is a “social construct” subject to interpretation and change.
While extraordinarily divisive, efforts to re-define gender and marriage have found some support in the U.S. as well – especially in President Obama’s administration, which has refused to defend the Defense of Marriage Act in court, as it is required to do.
The U.S. government also has worked in recent years to normalize homosexuality and push homosexual marriage in the military.
“If Europe confirms this approach of making social-sexual identity prevail over the biological one, it would also be difficult for the United States to keep clear laws on marriage,” Puppinck warned. “Of course, the court of Strasbourg and the U.S. Supreme Court collaborate a lot.
“Firstly, from a legal point of view, it’s interconnected, because the case law from the court of Strasbourg is acknowledged by the Supreme Court of the United States, and vice versa,” he said.
“Secondly, from a cultural point of view, there’s no real difference between them, and I think that if the court of Strasbourg continues to go in this gender theory, you have no way to protect marriage,” Puppinck added.
The consequences of upholding the 2002 ruling will be far reaching as well.
“You can make any law you want – as clear as men and women can form a family, as clear as you want – but if you apply the gender theory, it doesn’t mean anything,” Puppinck said. “The words do not mean anything anymore.”
A ruling on the case is expected later this year, but no date has been set. A judgment in favor of the transgender person could spark a whole new conflict, as experts say the Maltese government might well refuse to accept it.
Malta, one of the most religious and conservative nations in Europe, is one of just three pro-life nations in the entire European Union. Even divorce on the small island was not legal until 2011.
“We can imagine that Malta would not easily accept obeying this ruling,” said Puppinck, noting that other national governments had resisted ECHR dictates on separate issues. “It will be interesting to see how the court in Strasbourg will manage the case against Malta.”
If it does end up in a showdown, a spokesman for the ECHR told WND that the Committee of Ministers of the Council of Europe would have to decide on the enforcement measures.