Principle of Non-discrimination on the Grounds of Sexual Orientation and Same-Sex Marriage. A Comparison Between United States and European Case Law

Abstract

By way of a comparison between European and United States case law regarding same-sex marriages, this chapter aims at stressing the important role of judicial activity in implementing the full meaning of equality in exercising the fundamental right to marry. From an analysis of different judgments concerning the same-sex marriage, it is possible to observe a gradual global prevailing of the “paradigm of heterosexual marriage”, as a result of the non-discrimination principle on the grounds of sexual orientation, which is consolidated by the occidental juridical culture. The study of this case law also points out the relationship between social consent, judicial activity and legislative power. The European supranational courts as well as the US Supreme Court seem to check in a more stringent manner the discretion of the domestic/State legislators, in accordance with the growing social consent in favor of same-sex marriages. The “new approach” of the European supranational courts and the US Supreme Court has the merit to trigger a virtuous dialog among lower courts, State legislators and civil society in order to gradually give fullness to the meaning of the non-discrimination principle on the grounds of sexual orientation. Hence, it is possible to say that the current question is not if the same-sex marriage is constitutional but who decides about it. Judicial action, in the absence of legislative answers, risks guaranteeing only a fragmentary (and often contradictory) protection of fundamental rights. It should be desirable that the legislator will choose suggestions coming from the “living law” and that the “dichotomy” between the two powers will be reduced to unity, according to the rules of a democratic system, based on the separation of and loyal cooperation between the same powers.