Marriage, morality, and federalism: The USA and Europe compared

Abstract

Same-sex marriage litigation, both in the USA and Europe, has often pitted rights against state autonomy, and religious and moral beliefs against equality norms. Where the US Supreme Court and the European Court of Human Rights have diverged most notably is in their willingness to consider moral arguments made by states opposed to same-sex marriage. Treating moral arguments as illegitimate, as the USA has done, paved the way for the nationalization of same-sex marriage in 2015. But doing so came at a cost: It allowed courts to sidestep the most important concerns voiced on both sides of the debate—not just opponents’ moral arguments but also gay rights advocates’ equality claims. Further, by refusing to hear the one thing that made states meaningfully different on the issue of marriage, courts made federalism largely irrelevant. Recent battles over same-sex marriage in Europe show how this dialog might have been—and could still be—conducted differently.