The comparative law method and the European court of justice: Echoes across the Atlantic

Abstract

The purpose of this contribution is to examine some salient applications of the comparative law method in the jurisprudence of the European Court of Justice in light of relevant case law of the U.S. Supreme Court involving recourse to foreign and international law in domestic constitutional adjudication. It is divided into three main parts. The first part concerns the European Court of Justice's recourse to the comparative law method in the context of the prohibition of discrimination on grounds of sexual orientation, highlighting parallels to the U.S. Supreme Court's decision in Obergefell v. Hodges. The second part takes up the comparative law method in the context of the interpretation of EU law, focusing on the European Court of Justice's elaboration of the autonomous concepts of "spouse" and "marriage" and the potential implications for the mobility of same-sex couples in the EU, drawing insights from the U.S. Supreme Court's decisions in United States v. Windsor and Obergefell. The third part discusses the comparative law method in the context of the European Court of Justice's review of national and Union measures for compliance with EU fundamental rights, which invites comparisons with some recent U.S. Supreme Court cases on the incorporation doctrine and the standard of review. Altogether, the comparative reflections set forth in this contribution attest to similar challenges facing each Court in the context of constitutional adjudication and provide interesting insights into how the Courts carry out their mandates under their respective constitutional charters.