Crystal or Glass?: A Review of Dudgeon v. United Kingdom on the Fifteenth Anniversary of the Decision
| Author: | Micheal T McLoughlin MA |
| Subjects: | Discrimination (Other articles) Gay and lesbian legal rights (Other articles) Sexual orientation (Other articles) |
| Issue: | Volume 3, Number 4 (December 1996) |
| Category: | Refereed Articles |
A' Mhata, le mhile gra^
This paper was presented by the author as a work in progress following the panel discussion Same-Sex Marriage: Civil Right or Sell-Out?, on 12 April 1996 at the University of Michigan Law School, Ann Arbor.
Introduction
October 1996 marked fifteen years since the European Court of Human Rights issued its judgment in the case Dudgeon v. United Kingdom. Jeffrey Dudgeon was a shipping clerk and gay activist in Belfast, Northern Ireland when he was interrogated by the Royal Ulster Constabulary about his sexual activities. He filed a complaint with the European Commission of Human Rights which declared his complaint admissible to the European Court of Human Rights, and on 22 October 1981 the Court agreed with the Commission that the criminalisation in Northern Ireland of homosexual acts between consenting adults was a violation of Article 8 of the European Convention of Human Rights and Fundamental Freedoms.
This article reviews the Dudgeon case on its fifteenth anniversary to note its position in the legal history of European gay and lesbian rights, to ascertain its impact upon European-level politics and justice, and to conjecture on such future use as the case might have in the acquisition of legal equality for gay and lesbian Europeans. Among the questions addressed: What difference in circumstances suddenly made Jeffrey Dudgeon's complaint admissible to the Court, when all prior complaints (as late as the same year his was submitted) were summarily dismissed, the dismissals often tersely worded and recounting common arguments based on stereotypes and fear rather than evidence? What is the place of Dudgeon in the development of European-level case law in sexual orientation and what effect has this case law had on these non-rational and homophobic arguments? What role have Dudgeon and the two successor cases, Norris v. Ireland and Modinos v. Cyprus played in the development of European-level jurisprudence outside of sexual orientation issues?
More to the titular point, do these cases indicate any directions in which lesbian and gay rights advocacy might head, or are they simply milestone documents which mark the progress of gay and lesbian equality to date? On that fundamental question, I shall contend the latter and say that the ultimate effect of the Court's judgment in Dudgeon v. United Kingdom and its successor judgments in Norris and Modinos was simply to make gay men legally equal to lesbians (female homosexuality having never been illegal except in a very few European states) but the judgment did and does not make gay men and lesbians equal to heterosexual Europeans. The importance of the Dudgeon decision notwithstanding, the limited scope of the case makes it unlikely that it will be useful toward gaining further legal rights. Rather, the importance of Dudgeon is that it marks a point beyond which European gay and lesbian rights may not erode, whereas prior to the case no such point existed in European-level jurisprudence.
Further, the greater importance of Dudgeon comes when it is paired with the decisions in Norris and Modinos. David Norris challenged the same law as Jeffrey Dudgeon, which statute was passed in the nineteenth century before the partition of Ireland. In 1987, the Court confirmed by its decision in Norris v. Ireland that the same law it ruled a violation of Article 8 as a British law, was just as much a violation of Article 8 as an Irish law. In Modinos v. Cyprus, the Court further confirmed that it intended its decision in Dudgeon to be pan-European and that any law criminalising homosexual behaviour between consenting adults would be considered a violation of Article 8.
Moreover, in relying upon the British Government's 1957 Wolfenden Report, first in Dudgeon, then referring to it again in Norris and Modinos, the Court established the findings of that report as a pan-European standard. The Court thus used these three cases to assert its authority as a pan-European body and to include within that authority the power to cite and establish as European standard such documents, reports and evidence which might come before it.
The findings of the Wolfenden Report, in particular, go a long way toward discrediting at least three of four common non-rational arguments historically used to deny legal equality to gay and lesbian people everywhere, not just in Europe. These arguments, as I label them, are: 1) the Pied Piper Argument, which accuses gay men of leading youth away from family life and into a life of slavery to immorality; 2) the Rumpelstilskin Argument, which posits that gay men (and lesbians, too, but to a lesser degree) form socio-cultural groups separate from "real" society and thus, that a) homosexual people live lives of isolation and unhappiness, and b) being not members of "real" society, homosexual people would be a danger to it if they held legal equality in it; 3) the Mata 'Harry' Argument which, of course, is the tool of public policy that declares homosexual people to be a national security risk in government and military employment; and 4) the Gay Plague or Typhoid 'Mary' Argument, which blames gay men for the spread of disease and the fall of Rome, not to mention other great world empires. While these labels are amusing, the arguments they name are still taken seriously by many courts, governments, and societies, so the establishment of the Wolfenden Report through Dudgeon, Norris, and Modinos was an important achievement.
On the downside, the Wolfenden Report was written thirty-nine years ago and although forward-looking for its day, reflects the moral attitudes of its time in voicing the existence of a need to 'regulate' homosexual behaviour. While the report does provide fairly clear parameters for this 'regulation' and notes that all sexual behaviour falls within them, it is doubtful that a government or government authority would apply the same standard of 'regulation' to heterosexual behaviour as it might to homosexual behaviour. And although the report does much to discredit the arguments noted, it only addresses whether (male) homosexuality should be criminal and does not pursue any discussion about making homosexual people legally equal to heterosexual people.
The report's discussion of homosexuality only as a behavioural question particularly reveals its problematic temporal context, and one of the effects of this focus on behaviour is to ignore bisexual and transgender people. Indeed, scholars in human sexuality and gender studies themselves have only recently begun to distinguish sexual orientation from sexual behaviour, and this distinction is yet to be universally accepted. Many scholars, for example, do not accept bisexuality as a sexual orientation in its own right but see it as a behavioural variation of heterosexuality and homosexuality, while understanding of transgender people and their concerns is often limited to pre- and post-operative transsexuals. It is unlikely, then, that the distinction between sexual orientation and sexual behaviour will fully enter European governmental reports or jurisprudence for some time, with transgender issues beyond transsexualism taking longer still.
Nevertheless, European courts have fairly accepted, if only from a behavioural perspective, that homosexuality is an immutable status, and the idea that homosexual behaviour is not changeable is implicit in the Wolfenden Report through its recommendation that homosexual behaviour between consenting adults acting in private should not be criminal. Beyond the obvious fact that criminalisation did not encourage behavioural change, the report offered no suggestion that any other means of effecting such change be pursued. In short, the essential position of the 1957 report is comparable to that voiced several times in 1995 and 1996 by the Speaker of the American House of Representatives, that homosexuality should be neither condemned nor condoned, but tolerated. The ECHR appeared to share this perspective, expressing its opinion in the Dudgeon ruling that decriminalisation of homosexuality did not imply approval of homosexuality.
The Court also used Dudgeon in a strictly jurisprudential way to expand the definition of 'victim' found in Article 25. The Dudgeon case was the first accepted by the Court of Human Rights in which nether a formal arrest had occurred nor a prosecution brought, but there had been an interrogation, search and seizure preliminary to a prosecution. In the Norris case (1987), even these steps were absent and the Court still ruled that David Norris had been a victim within the meaning of Article 25; likewise in the Modinos case (1993). Of further interest in the Modinos case is the concurring opinion of Judge Matscher, who dissented in both prior cases because he believed there was no victim within the meaning of Article 25, that Alecos Modinos was a victim within the meaning of Article 25 despite the fact that all three cases are essentially identical in circumstance. It would appear that by the time Modinos came along, his status as a victim was essentially a 'given.'
Thus, while it is doubtful that the Dudgeon, Norris, or Modinos cases, taken singly or together, will provide a base for expanding pan- European lesbian and gay legal equality, they have provided a base for expanding interpretation of certain articles of the Convention and may be useful in that regard still. This may be especially true for cases brought which have the same historical advantages Dudgeon had, which advantages were lacking in earlier cases before the Commission from other countries.
But the impetus to extend legal equality to lesbians and gay men will probably not come from cases brought under the Convention, rather will probably arise from cases brought from Scandinavia and/or The Netherlands to be heard in the European Court of Justice on questions of European Union law and regulations. By the end of 1997, all five Scandinavian countries will have registered partnership legislation in place, providing a legal framework for same-sex couples almost identical to marriage. The Netherlands stands poised to introduce legislation in August 1997 which will extend the actual marriage laws themselves to same-sex couples. As these couples travel to other E.U. member states as tourists and for employment opportunities, they are very likely to demand the other states recognise their personal unions as legally valid. And when the European Union's member states extend such recognition, the gay and lesbian equality ball will then be passed to the Council of Europe's court.
It all began fifteen years ago with the judgment in Dudgeon v. United Kingdom.
Case Review[1]
The Facts Before the Commission
Jeffrey Dudgeon was conscious of his homosexual orientation from the time he was fourteen. The Campaign for Homosexual Law Reform (CHLR) was formed in Northern Ireland in January 1974 when Dudgeon was in his thirties, its mission being to pressure the British government to extend the Sexual Offences Act 1967 to Northern Ireland. It was this Act of Parliament which finally implemented the recommendations of the Wolfenden Report and decriminalised male homosexuality in England and Wales, but not in Scotland or Northern Ireland[2] The CHLR was reorganised in 1975 as the Northern Ireland Gay Rights Association (NIGRA), its purpose being to work on a national gay rights bill in association with the Committee for Homosexual Equality (England and Wales) and the Scottish Minorities Group.
The Royal Ulster Constabulary (RUC) Drug Squad carried out a number of raids in January 1976 on the homes of gay men, mainly those who were involved in the law reform movement. This was ostensibly done under the Misuse of Drugs Act 1971. On 21 January, the RUC arrested NIGRA's secretary, Jeffrey Dudgeon.
During the search of his home the police found, in addition to cannabis (Marijuana), personal correspondence and diaries in which he described homosexual acts. These were seized and Dudgeon was taken to the police station where he was interrogated for four-and-a-half hours about his sexual behaviour. He was asked to sign a statement about his "homosexual activities," and the police investigation file was forwarded to the Director of Prosecutions with the intent of charging Dudgeon with the offence of "gross indecency between males." The Director decided that prosecution would not be in the public interest, Dudgeon was informed in February 1977 that he would not be charged, and the papers seized a year earlier were returned with police notes written over them.
Meanwhile the decision was made by NIGRA to go ahead with an action at European level and Dudgeon filed his complaint with the European Commission on 22 May 1976, alleging 1) that the existence of laws in making homosexual acts between consenting male adults criminal offences in Northern Ireland, and that the police investigation pursuant thereto constituted an interference with his right to respect for private live, in breach of Article 8 of the European Convention; and 2) that he had suffered discrimination within the limits of Article 14, on the grounds of sex, sexuality and residence. Dudgeon also claimed compensation, on which the Court issued a separate judgment in 1983.[3]
In a total reversal of its previous actions in regard to sexual orientation complaints, the Commission declared Dudgeon's complaints concerning the laws in Northern Ireland to be admissible on 3 March 1978. The Commission issued its report on 13 March 1980, stating that "the legal prohibition of such {homosexual} acts between male persons over 21 years of age breached the applicant's right to respect for his private life"[4] by nine votes to one. The case was referred to the European Court of Human Rights for judgment on 18 July 1980, and the Chamber of the Court relinquished jurisdiction on 30 January 1981 to the plenary court, which issued its judgment in Dudgeon's favour on 22 October 1981.
Article 8 and Northern Ireland
A number of the articles of the European Convention might be applicable either directly or obliquely in cases of sexual orientation discrimination, but far and away the article most applicable to sexual orientation discrimination is Article 8, which reads:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of the country for the protection of health or morals, or for the protection of the rights and freedoms of others.[5]
The procedure for bringing a case before the European Court of Human Rights (ECHR) prior to recently proposed reforms was to file a complaint with the European Commission of Human Rights (The Commission), which then determined whether the case merited the Court's consideration. Cases forwarded to the Court were then argued by the Commission, at least officially.[6]
The ECHR is an organ of the Council of Europe, itself the brainchild of Sir Winston Churchill who in a speech at Zurich on 19 September 1947 called for:
...a remedy which would, as if by a miracle, transform the whole scene and would in a few years make all Europe, or the greater part of it, as free and happy as Switzerland is today... We must build a kind of United States of Europe.[7]
But the Council is not a 'United States of Europe,'and in the absence of any European equivalent to the American federal government and, thus, the nonexistence of European-wide case law, the ECHR had little choice but to interpret Article 8(2) in the context of national case law until it developed such a body of law itself.
Prior to Dudgeon and another case accepted at the same time, X. v. United Kingdom, all complaints regarding homosexuality were rejected by the Commission as 'manifestly ill-founded,' such as this early case (1959) from Germany:
No. 389. The applicant, a German citizen, convicted of homo- sexuality complained that Article 175 of the German Penal Code punishing homosexuality violated the Convention.
The Commission recalled that the convention allowed a High Contracting Party to punish homosexuality. It noted that the right to private life guaranteed in Article 8 was liable to interference in accordance with the law for the protection of health or morals (para.(2)) and that therefore Article 175 of the German Penal Code was in no way contrary to the terms of the Convention.
Complaint manifestly ill-founded.[8]
Likewise this seemingly obvious violation, also an early case from Germany:
No. 397. The applicant, a German citizen, was convicted in 1940 of homosexuality. After the war the conviction was quashed. The applicant complained that the com- petent authorities had refused his application for the destruction of criminal records containing photographs and fingerprints. The applicant invoked Article 8 of the Convention.
The Commission observed that "the keeping of records, including documents, photographs and fingerprints, relating to criminal cases of the past is necessary in a modern democratic society for the prevention of crime and is therefore in the interests of public safety."
Complaint manifestly ill-founded.[9]
In fact, most of the complaints prior to Dudgeon came from Germany, and as late as 1976 the Commission still found no breach of Article 8 in German law because there was still no European-level case law in which to find one. The arguments accepted in German courts, on whose case law the Commission had to rely, were those based on traditional stereotypes of gay men (and, obliquely, of lesbians) discussed at the beginning of this article. These classic arguments are not unique to Germany, but they find particular expression there, as the Commission wrote in 1976 when it rejected the complaint in X. v. Federal Republic of Germany:
Studies {...} made on several occasions in the Federal Republic of Germany both on adult homosexual behaviour and on the effects of the personality of adolescents of homosexual relationships with adults. They have led to convincing conclusions as to the existence of a special social danger in the case of masculine homosexuality. This danger results from the fact that masculine homosexuals often constitute a distinct socio-cultural group with a clear tendency to proselytise adolescents and that the social isolation in which it involves the latter is particularly marked."[10]
No scholarly or case references appear to have been provided on which the Commission might base these remarks, rather the German government seems to have relied solely on such phrases as "it is generally admitted," "experience shows" and similar presumptive statements. These included some very interesting reasons why it was necessary to discriminate against gay men, but not necessary to discriminate against lesbians in the criminal code:
The German government's opinion of male homosexuality was equally unscholarly:
Only two years later in the Dudgeon case, however, the Commission was unanimous that the Government of the United Kingdom was in breach of Article 8, writing that:
It would be quite contrary to this principle to allow a majority an unqualified right to impose its standards of private sexual morality on the whole of society...Even if the majority of people in Northern Ireland disapproves of homosexual conduct on moral grounds, this does not mean that it is necessary to prohibit it in order to protect morals in a democratic society.[13]
The Government made known in the House of Lords that it would not act on the Commission's decision but would wait for a ruling from the Court. The positions of both sides in the Dudgeon case, then, were obvious: the British Government would argue that the violation of Article 8(1) was justified by the provisions contained in Article 8(2), while Dudgeon's lawyers would argue through the Commission that they were not.
Dudgeon's arguments were considerably aided by 1) the findings of the Wolfenden Report published in 1957, 2) the application to England and Wales of those findings in the Sexual Offences Act 1967, 3) the extension of the Act to the province of Scotland in 1980, and 4) Britain's intent to decriminalise male homosexuality in the province of Northern Ireland, announced by the Labour government four months after Dudgeon was declared admissible and in spite of the announcement in the House of Lords noted above. These four factors, then, comprised the unique historic circumstances which made it possible, not only for Dudgeon's complaint to be forwarded to the Court, but also the complaint in X. v. United Kingdom which was accepted at the same time as Dudgeon.
Sir John Wolfenden was Vice Chancellor of the University of Reading in 1954 when he received an invitation from the Home Secretary, Sir David Maxwell-Fyfe, to chair a committee to investigate vice. The Report of the Committee on Homosexual Offences and Prostitution was published on Wednesday, 4 September 1957 and homosexuality was the front page story of nearly every newspaper in Britain the following day.
The Wolfenden Report, as it is more commonly known, reviewed several of the arguments historically used to keep consensual male homosexual behaviour in the criminal law and found them faulty. The principal arguments and the Committee's findings relative to them were:
The Committee found no evidence to support this view
It was accepted that a husband with strong homosexual needs could certainly undermine his marriage and therefore his family, but that equally serious problems could arise if either partner in a marriage engaged in adulterous behaviour or if a wife had lesbian tendencies. There was no logical reason why homosexuality alone should be singled out for criminal punishment since in this respect it was no more damaging than these other practices.
The expert witnesses who advised the Committee distinguished between two separate categories of male homosexuals--the majority who sought other adult males as sexual partners,and the small minority who were attracted to pre-pubescent boys.
These two types tended to be mutually exclusive; those who were attracted to one type of partner rarely showed interest in the other. It was pointed out that the legalisation of homosexual behaviour between consenting adults would actually reduce the risks of corruption by making boys less sought after.[14]
The Conservative government of the day was not particularly pleased with the Wolfenden Report, and opposition to implementing the report's reforms was continuous. The Sexual Offences Act 1967 was finally passed and decriminalised consensual homosexual behaviour in England and Wales, between men age 21 or older (except merchant seamen, members of the armed forces, and mental patients). The Act was extended to Scotland in 1980, but plans to extend the provisions of the Act to Northern Ireland were thwarted by public opinion and political necessity.
The Government put forth its draft for a Homosexual Offences (Northern Ireland) Order on 27 July 1978. The Dudgeon judgment quotes from a forward to the draft order, given by the Minister responsible, Merlyn Rees:
The Government has always recognised that homosexuality is an issue about which some people in Northern Ireland hold strong conscientious or religious opinions. In brief, there are two differing viewpoints. One...holds that homosexual acts under any circumstances are immoral and that the criminal law should be used, by treating them as crimes, to enforce moral behaviour. The other view distinguishes between, on the one hand that area of private morality within which a homosexual individual can (as a matter of civil liberty) exercise his private right of conscience and, on the other hand, the area of public concern where the State ought and must use the law for the protection of society and in particular for the protection of children, those who are mentally retarded and others who are incapable of valid personal consent...
There are in addition other considerations which must be taken into account. For example, it has been pointed out that the present law is difficult to enforce, that fear of exposure can make a homosexual particularly vulnerable to blackmail and that this fear of exposure can cause unhappiness not only for the homosexual himself but also for his family and friends.
While recognising these differing viewpoints I believe we should not overlook the common ground....Moreover those who are against reform have compassion and respect for individual rights just as much as those in favour of reform have concern for the welfare of society. For the individuals in society, as for Government, there is thus a difficult balance of judgment to be arrived at.[15]
The Government invited and received a great deal of public comment, most of it very much opposed to extending the Sexual Offences Act 1967 to Northern Ireland. The Reverend Ian Paisley, founder of his own independent Presbyterian Church, leader of the Democratic Unionist Party and one of Northern Ireland's twelve Members of Parliament led a petition drive which collected 70,000 signatures to "Save Ulster from Sodomy".[16] Then as now, politics in Northern Ireland made for very queer bedfellows, and the staunch Protestant Paisley was joined in his condemnation of the draft Order by the Roman Catholic Bishops of the province. The Presbyterian Church of Ireland, although understanding the reasons if not the need for the change, expressed concern that change in the criminal law might be seen as approval of homosexuality. Indeed, among prominent religious organisations only the Church of Ireland, part of the Anglican Communion, voiced the opinion that homosexuality should be decriminalised while simultaneously noting that the Church was not giving its approval to homosexuality. The Court's judgment goes on to note that the strongest support for reform of the law came from social work agencies and from organisations representing gay men and lesbians, and that most political groups favoured reform.
But if any of Northern Ireland's twelve Members of Parliament supported law reform, none did so publicly and Labour Prime Minister James Callaghan needed the support of the Ulster members to keep his government in power. Even so, the Government found itself forced into a general election in April 1979, the month when it had intended to formally introduce the draft Order in Parliament, and Margaret Thatcher became Britain's first female Prime Minister on 3 May. The new Conservative Secretary of State for Northern Ireland announced on 2 July 1979 that the draft Order would not be going forward. The Advisory Commission cautioned in its report for 1979-80 that opposition in Northern Ireland to the draft Order may have been exaggerated and that the law should still be reformed, but the Government did not pursue this recommendation.
A brief word about Northern Ireland's constitutional status is in order for those who might be unaware of the civil strife and political extremism there. The Kingdom of Ireland was merged to the Kingdom of Great Britain on 1 January 1801, and the new country was called the United Kingdom of Great Britain and Ireland. The province of Northern Ireland came into existence on 6 December 1921 when twenty-six of Ireland's thirty-two counties left the union formed in 1801 and became the Irish Free State (since 1949, the Irish Republic).
The popular majority of Northern Ireland are ethnic Scots, descended from settlers landed in northeastern Ireland in the seventeenth century. Being Scots instead of Irish, and predominantly Protestant instead of Catholic, this majority had and has no desire to be part of a predominantly Irish and Catholic nation. Given a degree of autonomy not extended to the other three provinces of United Kingdom (England, Scotland and Wales), the ethnic Scots of Northern Ireland put a system of provincial government in place which excluded the province's ethnic Irish minority, including both Irish Catholics and Irish Protestants.
Ethnic tensions in Northern Ireland simmered for nearly seventy years, finally erupting in 1969 in so great a wave of violence that the national government in London had no choice but to abolish the provincial government in 1972 and take provincial matters in his own hands. It took more than twenty years for a cease-fire to be effected in the guerrilla warfare.
Given the tension in Northern Ireland, the political environment in Britain generally, and the fairly weak arguments the Government made before the ECHR, it would appear that London was desirous of changing the law in Northern Ireland but preferred to let it be mandated by a European-level organ rather than risk political fallout at home.
Before the Court
The case thus forwarded to the ECHR, a Chamber of seven judges was composed according to the usual procedure. The Chamber voted on 30 January to relinquish jurisdiction to the plenary Court, meaning that the case would be heard by twenty-one judges instead of seven, and Judge Wiarda changed hats from 'President of the Chamber' to become 'President of the Court.' The Government's memorial was received by the Court on 6 February 1981 and the Commission's reply on 1 April.
Oral proceedings opened in public on 23 April 1981 at the Human Rights Building in Strasbourg, with the Court deciding immediately beforehand that it would not hear any expert evidence. The Court heard speeches from the Delegates and Lord Gifford, on behalf of the Commission, and from representatives from the British government. Lord Gifford also submitted a number of documents through the Delegates of the Commission. In May, the Registrar of the Court received written replies from the Government and the Commission to questions put by the Court, along with written observations on the documents filed before and during the proceedings. Judge Wiarda was not able to participate in the actual consideration of the case in September, and his place was taken over by Judge Ryssdal as Vice-President of the Court.[17]
The Commission argued for the Court to find the United Kingdom in breach of Article 8(1), while the Government asked the Court
To decide and declare that the present laws in Northern Ireland relating to homosexual acts do not give rise to a breach of Article 8 of the Convention, in that the laws are necessary in a democratic society for the protection of morals and for the protection of the rights of others for the purposes of paragraph 2 or Article 8.
To decide and declare that the facts disclose no breach of Article 14, read in conjunction with Article 8.
To decide and declare that it is unnecessary to examine the question of whether the laws in Northern Ireland relating to homosexual acts give rise to a separate breach of Article 14, read in conjunction with Article 8 of the Convention.[18]
The Court issued its decision on 22 October 1981, noting in its analysis that Dudgeon complained he was liable to prosecution under the law on the basis of his sexual behaviour and that this caused him a great deal of fear, suffering and psychological distress. He further complained about the police interrogation about his sex life following the search of his home and the seizure of personal papers by the RUC which were not returned for more than a year.
The Commission reported that it had no reason to doubt Dudgeon's fear of prosecution nor doubt that he had suffered psychological distress because of that fear, and the Court agreed, ruling that "the maintenance in force of the impugned legislation constitutes a continuing interference with the applicant's right to respect for his private life (which includes his sexual life) within the meaning of Article 8 Section 1, in so far as it prohibits homosexual acts committed in private between consenting males."[19]
The British government neither conceded nor disputed the points that Dudgeon was directly affected by the laws and was therefore entitled to claim to be a victim under Article 25 of the European Convention.
The Court further ruled that the law in question was not a 'dead letter,' writing that:
Although no proceedings seem to have been brought in recent years with regard to {homosexual} acts involving only males over 21 years of age, apart from mental patients, there is no stated policy on the part of the authorities not to enforce the law in this respect. Furthermore, apart from prosecution by the Direct of Public Prosecutions, there always remains the possibility of a private prosecution. Moreover, the police investigation in January 1976 was, in relation to the legislation in question, a specific measure of implementation--albeit short of actual prosecution--which directly affected the applicant in the enjoyment of his right to respect for his private life. As such, it showed that the threat hanging over him was real.[20]
The antepenultimate line contains the precedent noted in the introduction, that the action of the police against Jeffrey Dudgeon, "albeit short of actual prosecution," made him a qualified victim under Article 25.
The Commission observed and the Court agreed that the cardinal issue in Dudgeon was whether or to what extent the legislation was "necessary in a democratic society for the protection of morals."[21] Here, the Court relied heavily upon the Wolfenden Report of 1957, agreeing with the Wolfenden Committee that:
some degree of regulation of male homosexual conduct, as indeed of other forms of sexual conduct, by means of the criminal law can be justified as 'necessary in a democratic society'...in the words of the Wolfenden Report, 'to preserve public order and decency {and} to protect the citizen from what is offensive or injurious.' Furthermore, this necessity...may even extend to consensual acts committed in private, notably where there is call--to quote the Wolfenden Report once more-- 'to provide sufficient safeguards against exploitation and corruption of others, particularly those who are specially vulnerable because they are young, weak in body or mind, inexperienced, or in a state of special physical, official or economic dependence.'[22]
The Court went on to note that there is legislation in every member state of the Council of Europe to protect those who might be vulnerable to sexual exploitation or corruption. But the law in Northern Ireland is distinct from the vast majority of member states in applying the provisions to consensual sexual activity between adult males who are not vulnerable to exploitation or corruption. In the opinion of the Court, the word 'necessary' "does not have the flexibility of such expressions as 'useful,' 'reasonable,' or 'desirable,' but implies the existence of a 'pressing social need' for the interference in question.[23]
The Court also observed that Article 8(2) links the concept of necessity to the context of a democratic society, further observing that under the Court's case-law,
A restriction on a convention right cannot be regarded as 'necessary in a democratic society'--two hallmarks of which are tolerance and broadmindedness--unless, amongst other things, it is proportionate to the legitimate aim pursued.
The Court's task is to determine on the basis of the aforestated principles whether the reasons purporting to justify the 'interference' in question are relevant and sufficient under Article 8 Section 2. The Court is not concerned with making any value-judgment as to the morality of homosexual relations between adult males.[24]
This last statement was crucial to the Court's judgment. The British government argued that justification under Article 8(2) should be found because the society of Northern Ireland was more conservative on social issues, especially in the realm of human sexuality; and that the special constitutional status of Northern Ireland required proper care be taken to observe the very sensitive public opinion in the province. Among other things, the Government noted that the age of consent for heterosexual and lesbian intercourse, which was age 16 in England, Wales and Scotland, was a year higher in Northern Ireland.
The Court agreed that the situation in Northern Ireland was different and the circumstances very serious. "Without any doubt," the Court wrote:
faced with these various considerations, the United Kingdom Government acted carefully and in good faith; what is more, they made every effort to arrive at a balanced judgment between the differing viewpoints before reaching the conclusion that such a substantial body of opinion in Northern Ireland was opposed to a change in the law that no further action should be taken.[25]
But the Court went on to say:
Nevertheless, this cannot of itself be decisive as to the necessity for the interference with the applicant's private life resulting from the measures being challenged. Notwithstanding the margin of appreciation left to the national authorities, it is for the Court to make the final evaluation as to whether the reasons it has found to be relevant were sufficient in the circumstances, in particular whether the interference complained of was proportionate to the social need claimed for it.[26]
The Court continued its discussion, noting differences in the understanding and acceptance of male homosexuality in the late twentieth century as compared with the mid-nineteenth. The Court further noted that most member states of the Council of Europe had already decriminalised homosexuality and that even in Northern Ireland, no prosecutions had been brought for some time and this did not seem to have an adverse effect upon the province. Thus wrote the Court:
It cannot be maintained in these circumstances that there is a 'pressing social need' to make such acts criminal offences... the Court considers that such justifications as there are for retaining the law in force unamended are outweighed by the detrimental effects which the very existence of the legislative provisions in question can have on the life of a person of homosexual orientation like the applicant. Although members of the public who regard homosexuality as immoral may be shocked, offended or disturbed by the commission by others of private homosexual acts, this cannot on its own warrant the application of penal sanctions when it is consenting adults alone who are involved.....'Decriminalisation' does not imply approval, and a fear that some sectors of the population might draw misguided conclusions in this respect from reform of the legislation does not afford a good ground for maintaining it in force with all its unjustifiable features.[27]
So the Court held, by a vote of fifteen to four, that Dudgeon had suffered and continued to suffer an unjustified interference with his private life in violation of Article 8 of the Convention.
The Dissent in Dudgeon
Four judges dissented in the Dudgeon case: Judge Zekia, from Cyprus (whose opinion would become important in the case of Modinos v. Cyprus discussed below), Judge Matscher, Judge Pinheiro Farinha, and Judge Walsh, who partially dissented. Each learned judge essentially expresses his personal dislike of homosexuality in the context of a veiled legal argument, except for Judge Zekia who takes the moral high ground and writes openly of the immorality of homosexuality.
Judge Pinheiro Farinha states very concisely that he cannot concur with the Court's decision because in his opinion "there was no victim and the Court does not have jurisdiction to take cognisance of a breach alleged by someone who is not a victim".[28] The judge moves on to note that the RUC were executing a warrant under the Misuse of Drugs Act 1971, not in regard to homosexuality, and that no prosecution was brought. Significantly, this Judge (and likewise Judge Matscher) referred to the police conduct of January 1976 as taking place in the context of an extensive operation launched by the police to find "a minor who was missing from home and believed to be associating with homosexuals".[29] The judge fails to ask why the police should be using the Misuse of Drugs Act as a means of finding a teenage runaway. Indeed, given the number of people in Northern Ireland whose whereabouts at any particular time must have been uncertain in the turmoil of the mid-seventies, it hardly seems likely that the police would spend valuable time looking for a runaway teenager, homosexual or otherwise, unless he had information on one of the paramilitary groups (a not improbable circumstance in Northern Ireland).
Having decided there was no victim, and thus no violation of Article 8, Judge Pinheiro Farinha goes on to emphasise that some regulation of male homosexual conduct is necessary and that "this necessity for some degree of control may even extend to consensual acts committed in private".[30] In making this allusion to the Wolfenden Report, the judge illustrates how a progressively-intended turn of phrase can be turned around on itself and used to halt progress.
Judge Walsh of Ireland also decided there was no victim, but his reasoning was that there was no victim because the law did not make homosexuality itself illegal--only homo-sexual acts were illegal. Logically, then, a homosexual man who lived a celibate life would have nothing to fear. Further, Judge Walsh expressed the very interesting opinion that homosexual behaviour does not necessarily indicate on a homosexual orientation. While this may be true--the individual might be bisexual or heterosexual as opposed to homosexual--Judge Walsh is speaking of homosexual orientation in a pathological context. He refers to "curable" and "incurable" homosexuals, the former being people whom, in his opinion, are not homosexual but simply engage in homosexual behaviour. Although Judge Walsh makes a number of references to the Wolfenden Report, most of his statements about human sexuality are made without reference to any authority beyond the authority of the phrase "it is known," and the judge's own belief that homosexuality is an "unnatural sex practice."[31] In any case, Judge Walsh was also of the opinion that there was no breach of Article 8.
Judge Matscher also felt there was no breach of Article 8 and here he speaks from a distinctly heterosexist perspective as he writes:
Article 8 does not at all require that the State should consider homosexuality--in whatever form it may be manifested--as an alternative that is equivalent to heterosexuality and that, in consequence,its laws should treat each of them on the same footing.[32]
In the Judge's defence, he does observe that it does not follow from that argument that criminal prosecution for homosexual acts committed in private between consenting adults is 'necessary' under the scope of Article 8(2). Nevertheless, he dissented from the opinion of the Court because he could not accept that 'necessary' meant a "pressing social need" and, like Judges Walsh and Pinheiro Farinha, he did not believe there was a victim.
Finally, to the openly misohomogamist dissenting opinion of Judge Zekia. He writes directly and succinctly that:
He moves on to discuss the relevant law in Cyprus:
In Cyprus, criminal provisions similar to those embodied in the Acts of 1861 and 1885 in the North of Ireland are in force. Section 171 of the Cyprus Criminal Code, Cap. 154, which was enacted in 1929, reads:
'Any person who
(a) has carnal knowledge of any person against the order of nature, or
(b) permits a male person to have carnal knowledge of him against the order of nature
is guilty of a felony is liable to imprisonment for five years.'Under section 173, anyone who attempts to commit such an offence is liable to 3 years imprisonment.
While on the one hand I may be thought biased for being a Cypriot Judge, on the other hand I may be considered to be in a better position in forecasting the public outcry and the turmoil which would ensue if such laws are repealed or amended in favour of homosexuals either in Cyprus or in Northern Ireland. Both countries are religious-minded and adhere to moral standards which are centuries' old.[34]
Judge Zekia goes on to write how a democratic society is ruled by the majority, saying that he finds it perplexing that the law might be changed to accommodate a minority against the wishes of the majority. As to the absence of criminal prosecutions in Northern Ireland, he suggests that this may be because homosexual acts are almost never committed in that part of the United Kingdom. Thus, as Judge Zekia puts forth, there may be no need to change the law in regard to homosexual conduct in Northern Ireland because they may not actually have any homosexuals there, or if they do have a few homosexuals in Northern Ireland some of them might be curable.[35]
Not surprisingly, Judge Zekia ardently supported the maintenance of the Acts passed by the British Parliament in 1861 and 1885 Tfor the protection morals and the rights of othersU in Northern Ireland. Viewed fifteen years on, so much has been learned about human sexual orientation and psycho-sexual development in the intervening time that some of the ideas expressed by Judge Zekia and other dissenting judges would be comical, were they not real beliefs still sincerely held by many people. In fact, Judge Zekia's dissenting opinion would be adopted by the government of his native Cyprus and the same arguments surface again in the Modinos case, briefly reviewed below.
Building Case Law
The Court's judgment in Dudgeon cleared the way for the British government to extend the Sexual Offences Act 1967 to Northern Ireland, as it had wanted to do several years earlier but could not due to the sensitive political situation in the province. Beyond that, the effect of the Dudgeon judgment was nil. Its only effect in Britain was to make gay men equal to lesbians except for the age of consent, and it had no real effect outside of Britain.
The psychological effect upon the European lesbian and gay civil rights movement, however, was probably enormous and the fact that Jeffrey Dudgeon succeeded where all of his predecessors had failed was essential to the two later successes in the ECHR.
David Norris filed his complaint against the Irish Republic in 1983. The Commission declared the complaint admissible in 1987, and the Court ruled on it in 1988. Senior Counsel for David Norris was a fellow Senator from Trinity College, Mary Robinson, who two years later was elected the first woman President of Ireland.
As in the Dudgeon case, there was no prosecution. In Norris' case, however, even the steps leading to a prosecution (i.e., police interrogation, seizure of files, etc.) were absent. The Court thus used the Norris case to confirm and expand the precedent it established in Dudgeon.
Norris had been to court, however, having instituted proceedings in the High Court in 1977, claiming that the Act of Parliament passed in 1885 was no longer in force because Article 50 of the Irish Constitution so provided for those laws passed prior to the Constitution's adoption which were inconsistent with it.
This was, of course, the same Criminal Law Amendment Act that Dudgeon had challenged in Northern Ireland. Under this and the Offences Against the Person Act 1861, homosexuality itself was not illegal but homosexual behaviour was a criminal offence. The specific offences were identified as 'buggery' (anal intercourse between two men, or between a man and a woman, or a woman and an animal) punishable by life imprisonment and/or hard labour; 'attempted buggery,' punishable by ten year's imprisonment; and the beautifully obtuse 'gross indecency between males,' which was also punishable by ten year's imprisonment.
The High Court upheld the law, writing that one of the purposes of the law was "to reinforce the misapprehension and general prejudice of the public and increase the anxiety and guilt feelings of homosexuals leading, on occasions, to depression and the serious consequences which can follow from that unfortunate disease".[36] The Irish Supreme Court upheld the High Court decision on appeal and expressed its opinion that the laws against homosexuality were consistent with the Irish constitution and "the Christian and democratic nature of the Irish State."[37]
The Commission argued in Norris' favour on the basis of Dudgeon, and the ECHR agreed, writing that "In the Court's view, Mr. Norris is in substantially the same position as the applicant in the Dudgeon case, which concerned identical legislation then in force in Northern Ireland".[38] As in Dudgeon, the Court of the Chamber of seven judges relinquished jurisdiction to the plenary court, but with fourteen judges instead of twenty-one with the court ruling eight to six in favor of Mr. Norris. Ireland finally complied with the Court's decision in 1993, just as it prepared to rule in a third case, Modinos v. Cyprus.
Like Jeffrey Dudgeon and David Norris, Alecos Modinos was a gay activist in a country where consensual sexual behaviour between adult men was illegal. Unlike the other two, Modinos was in a committed relationship with another man, making the threat of prosecution very real.
As with both Dudgeon and Norris, no prosecutions had been brought for several years. In fact, the last case to be brought in Cyprus was tried in 1981, just prior to the Dudgeon judgment. So, the Government of Cyprus, like those of Britain and Ireland before it, claimed that change in the law was not desirable, because of public feeling about homosexuality; nor was it necessary, because the law had effectively ceased to exist.
The Court of the Chamber (nine judges) disagreed and voted eight to one that Cyprus was in violation of Article 8, basing its decision on the judgments in Dudgeon and Norris. The dissenting vote was cast by Judge Pikis of Cyprus, but the crucial legal point in this case directly concerned Judge Zekia's dissenting opinion in Dudgeon.
In the Cypriot case of Costa v. the Republic (1982), concerning a nineteen- year- old soldier convicted of allowing another man to have carnal knowledge of him, the Supreme Court of Cyprus chose to apply the dissenting opinion of Judge Zekia instead of the majority opinion in Dudgeon. In effect, the Cypriot Supreme Court did as the Irish Supreme Court and refused recognise the ECHR's decision. The Cypriot Court wrote:
In ascertaining the nature and scope of morals and the degree of the necessity commensurate to their protection, the jurisprudence of the European Court and the European Commission of Human Rights has already held that the conception of morals changes from time to time and from place to place, and that there is no uniform European conception of morals; that, furthermore, it has been held that state authorities of each country are in a better position than an international judge to give an opinion as to the prevailing standards of morals in their country; in view of these principles this court has decided not to follow the majority view in the Dudgeon case, but to adopt the dissenting opinion of Judge Zekia, because it is convinced that it is entitled to apply the Convention and interpret the corresponding provisions of the Constitution in the light of its assessment of the present social and moral standards in this country; therefore, in the light of the aforesaid principles and view the Cypriot realities, this Court is not prepared to come to the conclusion that Section 171(b) of our Criminal Code, as it stands, violates either the Convention or the Constitution, and that it is unnecessary for the protection of morals in our country.[39]
Although not part of the Commission's report, the necessity for referring the case to the ECHR is clear. If each member state of the Council of Europe were entitled, as Cyprus claimed, to apply the Convention according to its own interpretation it could very easily and quickly become a worthless document. Moreover, such a stance would ultimately preclude the European Commission and Court from having any real jurisdiction in human rights cases. A member state which did not like a particular majority ruling could simply apply the dissenting opinion instead and still claim to be in compliance with the European Convention.
An intriguing attachment to the Modinos case is a concurring opinion from Judge Matscher, who previously dissented in Dudgeon and Norris. He writes:
In this case I voted with the majority for a violation because--in contrast to the position in the cases of Dudgeon v. the United Kingdom (Series A no. 45, dissenting opinion, p. 33) and Norris v. Ireland (Series A no. 142, dissenting opinion, p. 24)--the applicant can claim to be a victim within the meaning of Article 25.[40]
The judge then continues, briefly, to re-state certain positions he previously published in his prior dissenting opinions. What makes his concurrence in Modinos interesting, of course, is that Alecos Modinos's situation was nearly identical with those of Jeffrey Dudgeon and David Norris. The only difference in lifestyle between the three men was that Modinos had a partner. Logically, if Modinos were a victim under the tenets of Article 25, then so were Dudgeon and Norris; or were they not, then he were not.
When one considers the juridical question in the case, i.e. whether individual states have the power to interpret and apply the Convention according to their own perceptions of the document, then Judge Matscher's concurrence in Modinos after dissenting in Dudgeon and Norris becomes comprehendible.
Implications and Possibilities
Contemporary Impact of Dudgeon
The position of Dudgeon as a milestone in the legal history of European gay and lesbian civil rights is unquestionable, but the impact of it and the two successor cases upon European-level politics and justice was mainly psychological. The cases are not so much tools for future change as they are documents of incremental change in societal attitudes toward lesbian and gay Europeans, especially gay men.
The scope of Dudgeon, Norris, and Modinos is limited to the decriminalisation of male homosexuality. Review of European gay and lesbian legal and political history, however, reveals that half the nation-states of Europe, containing more than half of the people and land area, had already decriminalised male homosexuality before the judgment in Dudgeon (see Table I in the appendix). Decriminalisation was a slow process, starting with France in 1791, then Belgium and Luxembourg in 1792. Nearly twenty years elapsed before the Netherlands next decriminalised male homosexuality in 1811, and the process continued very slowly until well after World War II.
Decriminalisation began to speed up after the Stonewall Riots of June 1969 in New York City. Gay activism existed in Europe since the late nineteenth century and in America at least from the founding of the Mattachine Society in 1951, but the Stonewall Riots marked a sea change in that activism. Discontent with the slow pace of quiet reform and tired of being victimised, the visible sector of the lesbian and gay community took to the streets in the 1970's and began to make very public demands for legal equality, starting with the demand for the decriminalisation of homosexuality in those jurisdictions where sexual intimacy between men (and between women, though lesbianism has only rarely been illegal in Europe) was still illegal. The Dudgeon case was an early product of the post-Stonewall gay activism that spread across the globe like 'the shot heard Tround the world.'[41]
As early as 1971, ten years before Dudgeon and without any prompting from the European Court of Human Rights, Denmark had already advanced to a second stage of gay and lesbian liberation: anti-discrimination legislation. Norway followed suit in 1981, five months before the Court's judgment was handed down. France, the Netherlands, Sweden, Ireland, and the German states of Brandenburg and Thuringia have also passed laws, between 1986 and 1994, which offer varying degrees of protection from discrimination (see Table II in the appendix).
Denmark took the lead again in 1989 when it passed the first national law allowing same-sex couples to register their partnerships and receive most of the legal benefits of marriage, thus bringing gay and lesbian Danes to threshold of full legal equality. The Danish external province of Greenland asked to be included under the law in 1994, while Norway, Sweden and Iceland have each passed their own registered partnership acts based on the Danish model in 1993, 1995 and 1996 respectively. Finland has introduced comparable legislation, which will likely be approved in 1997. And the Dutch government was given a directive by Parliament in summer 1996 to introduce legislation by 1 August 1997 which would extend full marriage rights to same-sex couples (see Table III in the appendix).
Just as different parts of Europe are at different stages of economic development, so different parts of Europe are at different stages of development on the question of legal equality for lesbian, gay, bisexual, and transgender people. Dudgeon , Norris, and Modinos thus stand together as confirmation of pan-European agreement on the first stage of gay and lesbian legal equality: that the consensual, private sexual expression between adult persons of the same sex should not be criminal. Agreement on stages two, three, and such others as may follow is yet to come and will likely be fraught with opposition, but Europe is agreed that decriminalisation of homosexual behaviour is the minimum standard beyond which gay and lesbian rights may not erode.
Romania is an important test of that standard. Admitted to the Council of Europe in 1993 on the condition that it would change its laws on homosexuality (both male and female homosexuality are criminalised), the Romanian Parliament has declined to do so. Rather, the revised penal code passed by the Chamber of Deputies on 10 September 1996 would more severely punish same-sex sexual intercourse, according to various circumstances, with prison terms ranging from six months to twenty-five years. An attempt to engage in same-sex sexual intercourse, making or distributing "propaganda," or belonging to a gay and/or lesbian association might each be punished by one to five years imprisonment.[42]
Following an outcry from a number of fellow members of the Council of Europe, but particularly following upon a very stern resolution from the European Parliament, the democratically-elected legislature of the European Union, the Romanian Chamber of Deputies acted on 25 September to remove the section punishing private, consensual homosexual behaviour, but kept the ban on gay and lesbian associations, "propaganda," and so forth. And any sexual behaviour which is deemed to cause public scandal, which term is undefined, will still be criminal and punishable by one to five years imprisonment. It should be noted that, at this writing, this legislation has yet to pass the Romanian Senate and become law.
The situation in Romania, at least as the law is proposed, illustrates a kind of intermediary stage between decriminalisation and anti-discrimination, and is reflected elsewhere in Europe to a greater or lesser degree in the laws of Austria, Finland, Liechtenstein, and the United Kingdom. All four nations prohibit the "promotion" of homosexuality, with U.K. specifying that schools and government may not 'promote' homosexuality (i.e., present homosexuality in a positive light). Austria and Liechtenstein additionally forbid lesbian and gay organisations, and there are numerous other laws in these and other European states which deny the same treatment under the law to lesbian, gay, bisexual, and transgender people as are accorded heterosexual people.[43]
Unequal ages of consent are one example of these laws, and of the intermediary stage noted above. In Britain, the age of consent for heterosexual and lesbian sexual intercourse is 16 in England, Wales and Scotland; 17 in Northern Ireland. But the age of consent for gay male sexual intercourse was 21 from the advent of decriminalisation until Parliament lowered the age to 18 in 1994.
More to the point, in the case X. v. United Kingdom, which the Commission forwarded to the Court at the same time as Dudgeon, the Court ruled that such unequal ages of consent for sexual activity are not a violation of the Convention. Here, the Court appears to have followed the same course of logic as in Dudgeon but whereas the Dudgeon case had the Wolfenden Report to call for decriminalisation, neither it nor any other government document called for an equal age of consent.
Nevertheless, one of the factors the Court considered in ruling on Dudgeon was that male homosexuality had already been decriminalised in all but a few member states. This is also true for ages of consent, that is, all but nine of the thirty-nine member states of the Council have equal ages of consent for heterosexual, lesbian, and gay male sexual intercourse (or five of nineteen member states, at the time the ECHR heard the case). This probably reflects the Court's preference to recognise national sovereignty in human rights matters, 1) which are not explicit violations of the Convention, and 2) in which there is no European-level case law. But it may also be a reflection of negative attitudes, albethey comparatively mild ones, on the part of the Court toward homosexual men.
Certainly the existence in any country of a higher age of consent for gay male and/or lesbian sexual intercourse posits the heterosexist notion that gay and lesbian people are not capable of the same maturity of thought as heterosexual people of the same age. Thus, the law in Britain, Austria, Croatia, Cyprus, Liechtenstein, and Serbia treats gay and bisexual men as children in those societies for a longer period than heterosexual men. In Finland, Hungary, and Bulgaria this extension of childhood also includes lesbians and bisexual women.
Unequal ages of consent, especially for gay men, also reflect the persistence of the Pied Piper argument. This was particularly true in Britain when the age of consent for gay men was 21, because it suggested that men under that age needed protection from men age 21 and older while women under the age of 21 did not, provided they were at least 16 (or 17 in Northern Ireland). Even then, it was and remains a defence (except in Northern Ireland) for a man under 24 to claim he believed a woman to have been 16 when they had sexual intercourse.[44]
In respect of the Pied Piper and the other classic arguments identified in the introduction, Dudgeon did put some important dents in them through the establishment of the Wolfenden Report as a standard. Nevertheless, these arguments are alive and well in the corridors of power where public policy is made, and in the minds of many Europeans. They are difficult arguments to combat because they are not illogical but non-logical.
An illogical argument is easily brought down by a logical one. But arguments which are non-logical are not based on discursive logic, fact or empirical evidence but on non-discursive factors such as emotionality and, often, supposition. Outside of the courts, they can only be countered, when they can be countered, by other non-logical arguments and especially through practical experience. The factor most commonly cited by those heterosexual people who have changed their minds and come to support gay and lesbian equality has been the experience of personally knowing a gay or lesbian individual.
Future Possibilities for Dudgeon
Application of Dudgeon in future equality claims is problematic because it, and the Norris and Modinos cases are so focussed on the issue of decriminalisation. This partly reflects the nature of the Convention, with its well- but tightly-written and cautiously interpreted articles. There are a number of articles in the Convention which might be called into service in the quest for lesbian and gay legal equality, and many of them are, though some of these articles are only obliquely applicable to sexual orientation issues.
Article 9 is probably the most obliquely relative, as it concerns freedom of thought and religion. It has been used in obscenity cases without success. As Robert Wintemute reports,[45] the Commission upheld the conviction of the publisher for 'blasphemous libel' in the case of Gay News Ltd. v. United Kingdom, which concerned a poem in which a Roman soldier fantasised about Jesus Christ.
Articles 10 and 11 are also only indirectly related to sexual orientation issues, the former providing that "Everyone has the right to freedom of expression,"[46] while the latter addresses "the right to freedom of peaceful assembly and to freedom of association with others".[47] The four cases considered by the Commission in regard to theses articles were all rejected. In Gay News Ltd. v. United Kingdom, the Commission did rule there was a violation of Article 10, but wrote that the violation was justified under Section 2 of the article which allows infringement of the right to freedom of expression for "the protection of the rights of others," in that case, the rights of those who were offended by the poem.[48]
Robert Wintemute suggests two possibilities for claims under Article 3, which prohibits inhuman or degrading treatment. Article 3 claims prior to Dudgeon were unsuccessful but, Wintemute thinks, might be successfulpost-Dudgeon if the arguments are made 1) that sexual orientation discrimination by Council member states might constitute inhuman or degrading treatment, which approach might be utilised in regard to the 'No Homo Promo' act passed by the British Parliament during Lady Thatcher's tenure (i.e., for a law to suggest that same-sex relationships are inferior to opposite-sex relationships is a degradation); and 2) that the deportation of lesbian, gay, bisexual, or transgender people from a Council member state to a country in which the individual might be officially penalised, imprisoned or even executed simply for being lesbian, gay, bisexual, transgender might also be considered inhuman or degrading treatment or punishment.
While one can't deny the potential for either of these arguments, it should be recalled that the primary reason Dudgeon was successful was the ability of the ECHR to rely on government reports and legislative documents, as well as the fact that most of Europe had already decriminalised male homosexuality. It would thus seem wise to wait until such time as similar circumstances existed before pursuing the first argument. The second argument would likely be manageable without such documents, especially if the case emphasised humanitarian grounds to deny the deportation. This, however, crosses over from sexual orientation into immigration law and the various factors pertinent thereto, all of which are beyond the purview of this article.
Jeffrey Dudgeon also claimed a violation of Article 14, which is an interesting piece of work for two reasons: 1) it may only be considered in conjunction with another article, and 2) it almost never is. For reasons known only to itself, the Court historically has had an aversion to addressing questions under Article 14, which reads:
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.[49]
The question relative to sexual orientation and transgender issues, of course, is whether the term "other status" includes sexual orientation and/or gender identity; or if the term sex is meant to be inclusive of sexual orientation as well as anatomical gender; or, given the nature of the article's dependent application, whether "other status" might be taken with the term "sex" to imply sexual orientation and/or gender identity, and thus indicate that discrimination based on sexual orientation be a violation of Article 14, in conjunction with whatever other article were being considered with it.
Of the two remaining articles that relate in some way to sexual orientation issues, Article 25 details how the Commission and Court may receive petitions, and this article has already noted how the Court used Dudgeon and Norris to expand the meaning of 'victim' under Article 25.
Next to Article 8, Article 12 has received the greatest workout from lesbian and gay rights lawyers. It states very simply that everyone has the right to marry and found a family. And in every case brought before it, the ECHR has ruled very simply that Article 12 does not apply to same-sex couples, even to those which have children, because marriage is historically the union of a man and a woman, for the purpose of bearing children.[50]
In the broader social context, this reflects the Middle-Eastern notion imported to Europe through Christianity, that a man founds a family to perpetuate his bloodline, his race, and such legacy as he might have to bequeath his descendants. In European tradition, the least legacy is at least his name. Indeed, as Gunter Grau notes in Hidden Holocaust, the Nazi's primary objection to gay men was that they were race traitors, because they didn't father children. This view probably remains a common one throughout Western society, and may partly explain why heterosexual people have only rarely made female homosexuality illegal, but almost always made male homosexuality illegal.[51]
The failure of the ECHR to consider same-sex couples to be families effectively negates the possibility to expand the jurisprudence of Article 8 to cover other areas of gay and lesbian equality beyond decriminalisation, because it disables the 'respect for family life' clause of the article. The situation may change, however, if and when cases are brought under Article 12 from the Scandinavian member states which have put registered partnership legislation in place to give same-sex couples almost all of the legal rights of marriage. Even more hopeful is the legislation due to be brought in the Netherlands which is expected to provide all of the rights of marriage to same-sex couples, including the term 'marriage.' Other countries, such as Spain and Hungary, have moved to de facto if not de jure recognition of common-law marriage between same-sex partners on par with opposite-sex common-law marriage.[52]
One further, somewhat hidden tool in Dudgeon which has yet to be fully exploited is the implicit recognition of homosexuality as an immutable status. The Court did not actually say that sexual orientation is an immutable status, rather it simply accepted and stated the fact of Dudgeon's sexual orientation in paragraph 13 of the judgment:
Mr. Dudgeon is a homosexual and his complaints are directed primarily at the existence in Northern Ireland of laws which have the effect of making certain homosexual acts between consenting adult males criminal offences.[53]
And again in paragraph 32:
The applicant has, on his own evidence, been consciously homosexual from the age of 14.[54]
The Court does not query Dudgeon's perception of his sexual orientation at age 14, nor does it refer to any sexual behaviour which might have led him to this realisation, and neither does the Court at any time suggest that sexual orientation is a mutable charac-teristic.. Indeed, the ECHR does not bother to join the debate as to whether sexual orientation is a matter of personal identity or behavioural choice, essentially treating the issue as an irrelevant question.
Moreover, by noting the age at which he was conscious of his sexual orientation, Jeffrey Dudgeon put forward that it did not take him until age 21 to develop the mental and emotional maturity to ascertain his sexual identity, and the Court appears not to have questioned this point. This fact might lend a degree of support to a complaint filed with the Commission in early 1995 against United Kingdom by Euan Sutherland who, at seventeen, was under the age of consent for gay male sexual intercourse, but above the age of consent for heterosexual intercourse. In line with the Court's prior approach to sexual orientation cases, he would also need a great deal of additional documentary support and would certainly be helped by the fact that Britain did lower the age of consent from 21 to 18 in 1994. The Commission, in accepting the complaint, asked the British government to explain why young gay and bisexual men need protection that young lesbian, bisexual and heterosexual women do not; and why these men are penalised for engaging in sexual behaviour while heterosexual men the same age are not.
Meanwhile, the ECHR is awaiting approval of major reforms to its operation by the member states of the Council. The Commission and Court each currently operate as separate part-time bodies. Under the reforms proposed in 1995, the Commission will become obsolete and its role will be taken over by a new full-time Court. This and other administrative reforms will make the operation of the Court more efficient, allowing it to keep up with a workload which, with thirty-nine member states, is a great deal more voluminous than at the Court's creation when there were less than fifteen member states.
The Council and the Union
A few months before the ECHR issued its judgment in Dudgeon, the Parliamentary Assembly of the Council of Europe passed a resolution calling for equal treatment under the law for gay men and lesbians. The Parliamentary Assembly, however, is a strictly advisory body comprised of members appointed by their national governments. It and the Council generally can advise member states that a particular course of action might be worthwhile, but there is no authority within the Council to force a member state to go along with one of the Parliamentary Assembly's suggestions.
The European Parliament, by contrast, is the democratically-elected legislature of the fifteen-member European Union. While it, too, cannot force the national governments of its member states to do its bidding, the fact that it is (since 1979) elected directly by the people of the member states gives that body a degree of moral clout the Council of Europe's Parliamentary Assembly does not have as an appointed body. Apart from being less than half the size of the Council of Europe, the EU differs from the Council in being principally concerned with economic issues while the Council is essentially a political forum.
The European Union also has a court--the European Court of Justice, and Court of First Instance. It hears complaints in regard to the various treaty provisions governing the European Union. Like the ECHR, which only hears cases from member states that accept its jurisdiction as binding, the ECJ is empowered to order a member state's compliance with treaty provisions.
Most of these provisions relate directly to areas of economic concern, such as employment. As the EU has become gradually more integrated economically, socially and politically, the ECJ has begun to examine treaty provisions as they relate to the social environment of Europe, as well as the business climate. Employees, for example, tend to have families or otherwise significant people in their lives. Moving employees freely from one part of the EU to another means moving their families. Even in the case of non-employees, the free movement of tourists, students, and others from one part of Europe to another often involves spouses or personal partners traveling together. The product of these gradual changes is a European Union which is no longer simply an economic community or common market.
On February 8, 1994, the European Parliament, by a margin of 159 to 96, adopted a sweeping resolution on equal rights for lesbians and gay men. Section 7 of this resolution calls upon member states of the European Union to end "the unequal treatment of persons with a homosexual orientation under the legal and administrative provisions of the social security system and where social benefits, adoption law, laws on inheritance and housing and criminal law and all related legal provisions are concerned."[55]
The phrase 'all related legal provisions' is of interest here, because it presumably includes the items enumerated under Section 14 of the resolution. Having called upon the Commission of the European Community to present a draft recommendation on equal rights for lesbians and homosexuals, Section 14 directs that there should be an end "to the barring of lesbians and homosexual couples from marriage or from an equivalent legal framework, and should guarantee the full rights and benefits of marriage, allowing the registration of partnerships";[56] and an end to "any restriction on the right of lesbians and homosexuals to be parents or to adopt or foster children."[57]
This resolution followed the passage of registered partnership legislation in Denmark and Norway, in 1989 and 1993, respectively. As noted above, all five Scandinavian countries will have passed similar legislation by the end of 1997, all of it based on the original Danish act. That act provides that registered same-sex partners shall have the same rights, benefits and responsibilities as marriage, except the right to a church wedding, the right to adopt children, and the right (for lesbians) to conceive children through alternative insemination technologies. The Icelandic act expands upon the original to allow second-parent adoption of children previously born to a registered partner, and the Finnish legislation now pending in Helsinki will allow lesbians access to alternative insemination technologies.
Meanwhile, the government of the Netherlands is working on legislation to extend full marriage rights, including the term 'marriage,' to same-sex couples, pursuant to a directive from both houses of the Dutch Parliament in summer 1996. Under the terms of the parliamentary resolution, the Government is directed to introduce this legislation no later than 1 August 1997.
Elsewhere in Europe, the Hungarian Constitutional Court ruled in 1996 that there is no reason why same-sex couples should not be considered common-law married couples on an equal footing with heterosexual common-law married couples. Switzerland is drafting registered partnership legislation, and Spain extended 'de facto' (i.e. "common law marriage") couple status to same-sex partners in 1995.
Marriage rights, to whatever degree, mark and will continue to mark an exception-ally important advance in gay, lesbian and bisexual equality in Europe. The next round of landmark European-level court cases will likely arise when gay and lesbian Scandinavians, Spaniards, and so on, take jobs in other EU countries and not only demand to take their partners with them, but expect their partnerships to be given the same recognition they would have back home. Some of these couples, of course, will have children, which will further advance their desire for recognition in case something should happen to one of the partners.
Given that the ECHR has already ruled that same-sex couples are not family within the meaning of Article 12, and in spite of the 1981 resolution on gay and lesbian equality passed by the Parliamentary Assembly of Europe, it is unlikely that this Court will be the first forum for these cases. Rather, they will probably be brought in the European Court of Justice under various EU treaty provisions. The ECJ, for its part, will probably heed the sweeping resolution passed by the European Parliament in 1994 and rule accordingly, though precisely how that court will rule will depend in large part upon the arguments presented to it.
All fifteen member states of the European Union are also members of the Council of Europe, and the two bodies have begun to dialogue cooperatively in many areas. If the ECJ should rule favourably in these potential cases a body of European-level case law would be established which could then be drawn upon by the ECHR to rule on such cases as might be brought before it which were supported to a greater or lesser degree by the same historical circumstances and technical progression which made favourable judgments possible in Dudgeon, Norris and Modinos.
The case law alone would normally be sufficient, but on a question as serious as recognising same-sex marriages, about which people and organisations (notably religious institutions) will voice strong opinions on both sides, the case law alone will not be enough unless it is supported by scholarly studies and government papers comparable in importance to the Wolfenden Report. These studies will need to elicit that same-sex couples, and gay and lesbian people generally, are just as deserving of full equal treatment under the law as their heterosexual counterparts, and that the legal recognition of that fact will not threaten the existence either of heterosexuality or of family life.
This will be a very tall order as it calls, among other things, for a broadening of what has been the definition of 'family' for nearly a thousand years.[58]
Summary and Conclusion
This article has reviewed the case Dudgeon v. United Kingdom, together with related cases, on the crystal anniversary of the judgment handed down by the European Court of Human Rights. The object has been to ascertain its position in the legal history of lesbian, gay, bisexual, and transgender rights in Europe; to assess the impact the case has had in the fifteen years since the decision was rendered; and to speculate how the case might be drawn upon in future legal endeavours.
I have concluded that Dudgeon v. United Kingdom is a milestone in the history of both the European lesbian and gay civil rights movement, through the establishment of a minimum standard beyond which gay and lesbian rights may not erode; and in the historical development of ECHR case law, through the use of Dudgeon, Norris and Modinos to expand the definition of 'victim' under Article 25 of the European Convention of Human Rights and Fundamental Freedoms and to strengthen the Court's position as a pan-European organ of justice.
I have additionally concluded, however, that the principal impact of the Dudgeon case has been the psychological encouragement it provided to European gay, lesbian, bisexual, and transgender activists, and that its usefulness as a tool in the achievement of broader legal equality was limited by the focus of the case on the question of decriminalisation; the nature of the Convention articles, and prior rulings of the ECHR on them; and the Court's inclusion in it's opinion the observation that legalisation of homosexuality does not imply approval of homosexuality. In particular, I have noted that while Dudgeon and its two successor cases succeeded in making gay men equal to lesbians, whose sexual behaviour has almost never been criminalised, none of the three cases succeeded in making gay and lesbian Europeans equal to heterosexual Europeans.
Further, I have conjectured that the next round of favourable European-level cases will not come from the ECHR of the Council of Europe, but from the European Court of Justice of the European Union, probably in relation to Scandinavian, Dutch, Spanish, and other same-sex registered partnership or marriage laws in the context of applications for recognition of those relationships under the various treaty provisions which govern the European Union.
Finally, I have noted that Dudgeon, through the Wolfenden Report, has seriously questioned some of the classic, non-logical arguments used against lesbians and particu-larly against gay men while also noting that these arguments are still used in the formulation of public policy and in even in the courts. These non-logical arguments cannot be countered by logical arguments in public discussion, but they can be disabled by the increased visibility of gay, lesbian, bisexual, and transgender people so that that the public at large can come to know members of these communities and, through that personal knowledge, come to change their minds.
In the meantime, the tendency for courts to rely on logic and documented fact makes it possible to successfully depower non-logical arguments in a legal context. The record of the ECHR shows, however, that to do this successfully, there must be a body of European-level case law which may be applied, and/or a body of national case law, government reports, or expert opinion which the court may accept and on which it may rule. So, in addition to changing minds through visibility, there is a need for studies and reports to be done, either by government or if government will not do them, by reputable firms or individuals for presentation to government, or to the courts.
The question of gay and lesbian legal and social equality is and will continue to be bound up in questions of social and religious morality. If at no other time, this point was brought home to bear when the Court wrote that decriminalisation does not imply approval of homosexuality. This reality prompts a number of people in the lesbian, gay, bisexual, and transgender communities to question the efforts made by activists to achieve equality under the law when that legal equality will typically not bring with it social equality.
But although there is a kernel of truth to the idea that one cannot legislate morality, this statement is not really accurate because law is always the enshrinement of a moral principle. In one respect, legality is the logical parallel of morality, which is neither logical nor illogical, but non-logical. Rather, it is social change which cannot be legislated, just as societal attitudes cannot be legislated, nor the private thoughts of an individual. Because law enshrines and reflects the moral principles of the society it serves, the increased visibility of gay and lesbian people is of prime importance in creating change in societal attitudes, in part to ensure that the law enshrines moral principles, not moral dogma, and that those moral principles include full legal and social equality for lesbian, gay, bisexual, and transgender people.
Post-Script: The Hague
Shortly after completing this article, I received two reports about the legislation the Dutch government was directed by Parliament last summer to prepare. If the reports are accurate (I have been unable to verify them with Dutch sources), the Netherlands will not be extending full marriage rights to same-sex couples but will simply be copying the Scandinavian model.
Though a vast improvement over the current state of affairs, it will still perpetuate the heterosexist notion that gay and lesbian people and same-sex marriages are inferior to heterosexual people and opposite- sex marriages. The denial of adoption rights, in particular, is firmly rooted in the Peter Pan and Rumpelstiltskin arguments I discussed above. The latter argument is ultimately also responsible for the different way same-sex relationships are treated, viz. opposite-sex relationships being 'marriages' while same-sex relationships are mere 'partnerships'--not "real" unions based on love, but essentially personal business arrangements.
More importantly, however, Dutch registered partnership legislation, as opposed to marriage legislation, would negate the possibilities I mentioned in regard to embracing gay and lesbian people within the scope of Article 12 of the European Convention--the right to marry and found a family. It will also inhibit broadening of the Article 8 rulings in Dudgeon, Norris and Modinos to include respect for the family life of same-sex couples. While this legislation will not, of course, negate the fact that gay and lesbian families exist, it will keep the recognition of those families as equal before and under the law that much out of reach.
The silver lining in the cloud, however, remains the possibility to pursue an action in the European Court of Justice on the basis of the 1994 resolution of the European Parliament, which called for the extension to gay and lesbian people of "marriage or an equivalent legal framework." The task would be to elicit the hidden 'separate but equal' provisions of registered partnership, and to note that while registered partnership is a legal framework, it is not a equivalent legal framework to marriage as Parliament resolved. The witholding of adoption rights also runs counter to the European Parliament's resolution.
Such a case as I suggest might already be brought from Denmark or Sweden, and next year from Finland. It would be better, of course, were a case able to be brought from the Netherlands under legislation which would extend full marriage rights to same-sex couples, but that may be something that can't be helped.
Appendix
Table One charts the decriminalisation of homosexuality in Europe, 1791 to Present, including those five states which have yet to decriminalise homosexuality.[59]
Table Two identifies the various anti-discrimination legislation in a handful of states.[60]
Table Three lists those countries which have or are considering registered partnership, marriage, or common law marriage for same-sex couples.[61]
Table Four lists the member states of the Council of Europe, noting those which are also members of the European Union. Dates are accession to membership are also given.[62]
Table One: Decriminalisation of Homosexuality
Homosexuality Never Formally Criminalised
| Date* | Gender** | Nation--Province/State/Dependency |
|---|---|---|
| N.A. | N.A. | Iceland |
| N.A. | N.A. | Turkey |
Decriminalisation of Homosexuality, Pre-Dudgeon
| Date* | Gender** | Nation--Province/State/Dependency |
|---|---|---|
| 1791 | Male | France |
| 1792 | Male | Belgium |
| 1792 | Male | Luxembourg |
| 1811 | Male | The Netherlands |
| 1822 | Male | Spain |
| 1852 | Male | Portugal |
| 1889 | Male | Italy |
| 1917-24 + | Male | Russia (see also below, 1993) |
| 1930 | Male | Denmark |
| 1932 | Male | Poland |
| 1942 | Male | Switzerland |
| 1944 | M/F | Sweden |
| 1961 | M/F | as Czechoslovakia: CzechRepublic, Slovakia |
| 1961 | M/F | Hungary |
| 1967 | Male | United Kingdom--England and Wales |
| 1968 | Male | as German Democratic Republic (East Germany) |
| 1968 | M/F | Bulgaria |
| 1969 | Male | as Federal German Republic (West Germany) |
| 1971 | Male | Austria |
| 1971 | M/F | Finland |
| 1972 | Male | Norway |
| 1973 | Male | Malta |
| 1977 | Male | former Yugoslavia--Croatia and Slovenia; current Yugoslavia-Montenegro |
| 1977, 1995 ++ | M/NC | Albania |
| 1980 | Male | United Kingdom--Scotland |
Decriminalisation, Post-Dudgeon
| Date* | Gender** | Nation--Province/State/Dependency |
|---|---|---|
| 1982 | Male | United Kingdom--Northern Ireland (Dudgeon) |
| 1983 | Male | Guernsey (UK associated bailiwick) |
| 1990 | Male | Jersey (UK associated bailiwick) |
| 1991 | Male | Belarus (history sketchy) |
| 1991 | M/NC | Ukraine |
| 1992 | M/NC | Estonia |
| 1992 | M/NC | Latvia |
| 1992 | Male | Isle of Man (UK associated fiefdom; age 21) |
| 1993 | M/NC | Lithuania |
| 1993 | Male | Irish Republic |
| 1993 | Male | Russia |
| 1993 | Male | Gibraltar (UK colony) |
| 1994 | MFNC | current Yugoslavia--Serbia |
| 1995 | Male | Cyprus (bill pending in 1995) |
| 1995 | Male | Moldova |
| 1995-96 | Male | F.Y.R. Macedonia (penal code revision pending) |
Decriminalisation Date or Status Unknown
| Date* | Gender** | Nation--Province/State/Dependency |
|---|---|---|
| N.D. | NDMF | Andorra |
| N.D. | NDMF | Greece |
| N.D. | NDMF | Liechtenstein |
| N.D. | NDMF | Monaco |
| N.D. | NDMF | San Marino |
| N.D.S. | NDMF | The Vatican City-State |
Homosexual Behaviour Still Criminal
| Male | Former USSR--Armenia, Azerbaijan, and Georgia; Former Yugoslavia Bosnia-Herzegovina |
| Male and Female | Romania |
* N.A. = Not applicable. N.D. = No date for decriminalisation given in sources. N.D.S. = Date and legal status of homosexual behaviour not given in sources.
** Male = Male homosexuality formerly criminal. M/F = Male and female homosexuality formerly criminal. M/NC = Male homosexuality formerly criminal, degree of decriminalisation unknown. MFNC = Male and female homosexuality formerly criminal, degree of decriminalisation unknown. NDMF = No gender data on previous criminalisation of homosexuality.
+ Lenin decriminalised male homosexuality (female homosexuality was not illegal) upon founding the Russian Federated Soviet Socialist Republic in 1917. Stalin recriminalised male homosexuality in 1924, following the Lenin's death and the creation of the Union of Soviet Socialist Republics.
++ Sources provide conflicting dates for decriminalisation in Albania.
Table Two: Anti-Discrimination Legislation (as of March 1996)
| General Anti-Discrimination Legislation | |
|---|---|
| Denmark | Law of 9 June 1971, nr. 289; as amended by Law of 3 June 1987, nr. 357 forbids discrimination on the basis of sexual orientation. |
| Netherlands |
|
| Norway | Penal Code, para. 3491, Law of 8 May 1981, nr. 14; prohibits discrimination on the basis of homosexual leaning, lifestyle, or orientation. |
| Sweden | Criminal Code, c. 16, para. 9, Law of 4 June 1987, SFS 1987:610, forbids discrimination on the basis of homosexual leaning. |
| Anti-Discrimination in Employment | |
| France |
|
| Irish Republic | Even before decriminalisation in 1993, the Irish Parliament passed the Unfair Dismissals Act, 1977, No. 10, s. 6(2)(e), which made it illegal to fire an employee on the basis of his sexual orientation. The law was strengthened by the Unfair Dismissals (Amendment) Act, 1993, No. 22, s. 5(a), when decriminalisation legislation finally passed the Oireachtas and was signed into law. |
| United Kingdom | Legislation introduced to the House of Lords, March 1996, by Baroness Turner, which would make it unlawful to discriminate in employment on the basis of a homosexual, lesbian, or bisexual orientation. |
| Constitutional Provisions | |
| Germany | There are no federal provisions, but Article 12(2) of the 1992 state constitution of Brandenburg forbids discrimination in the Land of Brandenburg on the basis of sexual identity; and Article 2(3) of the state constitution of Thuringia forbids discrimination in that state on the basis of sexualorientation. Both Brandenburg and Thuringia were formerly part of the German Democratic Republic (or East Germany). |
Table Three: Almost Equal
| Year | Nation | Degree of Equality with Civil Marriage |
|---|---|---|
| Registered Partnership legislation | ||
| 1989 | Denmark | Registered partnership identical to marriage
except for:
|
| 1993 | Norway | |
| 1994 | Greenland | |
| 1995 | Sweden | |
| 1996 | Iceland | Same as above, except that Icelandic law allows one partner to adopt the natural children of the other (from a previous marriage). |
| 1997 | Finland | As above, with the addition of access to alternative insemination technology |
| Pending Marriage legislation | ||
| 1997* | Netherlands | Legislation anticipated for 1997 will simply extend current marriage legislation to include same-sex couples, thus providing complete equality with opposite-sex marriage. |
| Common Law Marriage or Other Pending Legislation | ||
| 1995 | Spain | 'De facto' couples |
| 1996 | Hungary | Common Law marriage |
| 1996/97 | Switzerland | Partnership legislation pending |
| 1996/97 | Luxembourg | Partnership legislation being considered |
* Marriage in the Netherlands is handled by the boroughs, 130 of which presently maintain separate registries for opposite- and same-sex marriages/partnerships. The legislation which the Dutch Parliament called upon the government to prepare for introduction in 1997 would merge these two registries into one and make same-sex marriage registration available nationwide. Interestingly, although gay men and lesbians are not presently allowed to adopt children in The Netherlands, they are allowed to be foster parents. Sources (for Table Three) indicate that, in fact, more children are fostered by gay and lesbian couples in that country than by heterosexual couples.
Table Four: Member States of the Council of Europe and the European Union
| Member State | Council of Europe | European Union |
|---|---|---|
| Albania | 1995 | ------ |
| Andorra | 1994 | ------ |
| Austria | 1956 | 1995 |
| Belgium | 1949 | 1952 |
| Bulgaria | 1992 | ------ |
| Croatia | 1996 | ------ |
| Czech Republic | 1991 (as Czechoslovakia) | ------ |
| Cyprus | 1961 | ------ |
| Denmark | 1949 | 1973 |
| Estonia | 1993 | ------ |
| Finland | 1989 | 1995 |
| France | 1949 | 1952 |
| Germany, West | 1951 | 1952 |
| Germany, East | 1990 (reunification with WG) | 1990 |
| Greece | 1949 | 1981 |
| Hungary | 1990 | ------ |
| Iceland | 1950 | ------ |
| Irish Republic | 1949 | 1973 |
| Italy | 1949 | 1952 |
| Latvia | 1995 | ------ |
| Liechtenstein | 1978 | ------ |
| Lithuania | 1993 | ------ |
| Luxembourg | 1949 | ------ |
| Macedonia, FYR | 1995 | ------ |
| Malta | 1965 | ------ |
| Moldova | 1995 | ------ |
| Netherlands | 1949 | 1952 |
| Norway | 1949 | ------ |
| Poland | 1991 | ------ |
| Portugal | 1976 | 1986 |
| Romania | 1993 | ------ |
| Russia | 1996 | ------ |
| San Marino | 1988 | ------ |
| Slovakia | 1991 (as Czechoslovakia) | ------ |
| Slovenia | 1993 | ------ |
| Spain | 1977 | 1986 |
| Sweden | 1949 | 1995 |
| Switzerland | 1963 | ------ |
| Turkey | 1950 | ------ |
| Ukraine | 1995 | ------ |
| United Kingdom | 1949 | 1973 |
Note: The parliaments of Armenia, Azerbaijan, Belarus, Bosnia-Herzegovina and Georgia hold special guest status in the Parliamentary Assembly of the Council of Europe. The Israeli Knesset has had special observer status in the Parliamentary Assembly since 1957. Saarland, autonomous from Germany until 1957, was formerly an associate member of the Council of Europe.
Notes
[1] Eur. Court H.R., Dudgeon Case, Decision of 30 January 1981 {containing the decision of 22 October 1981}, Series A no. 45.
[2] Scotland retains its own legal system separate from the rest of United Kingdom under the terms of the Act of Union 1707. Northern Ireland had its own provincial parliament and legal system from the creation of the province in 1921 until the abolition of the provincial government in 1972, though measures affecting Northern Ireland alone are still passed separately (as with Scotland).
[3] The Court's judgment on the Article 50 question was handed down in 1983 and denied compensation to Dudgeon because his expenses had been paid by NIGRA.
[4] Eur. Court H.R., Dudgeon Case, Series A, No. 45, p. 16.
[5] Council of Europe, Collection of Decisions, p. 214.
[6] Applicant counsel before the Commission may also appear before the Court. Reforms to the mechanism of the Court proposed under Protocol 11 (1994) are awaiting ratification by the member states of the Council of Europe. Among other things, Protocol 11 would replace the current part-time Commission and part-time Court with a new full-time court, eliminating the two-bodied two-step approach.
[7] Council of Europe. Manual of the Council of Europe, p 3
[8] Council of Europe, Collection of Decisions, p. 215 (No. 389).
[9] Id., p. 218 (No. 397). [10] Clapham, Andrew and J.H.H. Weilor, "Lesbians and Gay Men in the European Community Legal Order," in Homosexuality: A European Community Issue, p 194.
[11] Id., p. 50.
[12] Ibid.
[13] Jeffrey-Poulter, Stephen. Peers, Queers and Commons, p. 151
[14] Id., p. 29.
[15] Eur. Court H.R., Dudgeon Case, Series A, no. 45, pp. 12-13.
[16] Jeffrey-Poulter, Stephen. Peers, Queers and Commons.
[17] Eur. Court H.R., Dudgeon Case, Series A, no. 45, pp. 6-7.
[18] Id., pp. 16-17.
[19] Id., p. 18.
[20] Id., p. 19.
[21] Id., p. 20.
[22] Ibid.
[23] Id., p. 21.
[24] Id., p. 22.
[25] Id., p. 23.
[26] Ibid.
[27] Id., p. 24.
[28] Id., p. 38.
[29] Ibid.
[30] Ibid.
[31] Id., p. 45.
[32] Id., p. 33.
[33] Id., p. 29.
[34] Id., p. 29-30.
[35] Id., p. 30.
[36] Eur. Court H. R., Norris Case, judgment of 26 October 1988, Series A no. 142, p. 13.
[37] Ibid.
[38] Id., p. 16
[39] Eur. Court H.R., Modinos Case, Decision of 1993, Series A, p. 9.
[40] Id., p. 14.
[41] The opening shot in April 1775 of the American War for Independence is called 'the Shot heard Tround the world' because America was the first European colony to take up arms and demand independence of the mother country, and in doing so successfully set a precedent which other European colonies followed. It is often forgotten that the War for Independence followed upon attempts to peacefully negotiate redress of colonial grievances. Similarly, the Stonewall Riots of 1969 followed upon decades of peaceful, progressive attempts to acquire legal equality in the United States for lesbian, gay, bisexual, and transgender people.
[42] Iacos, Ion. "Proposal in Romanian Parliament to Expand Ban on Homosexuals," and Hein Verkerk, "Resolution in European Parliament on Romania," in Euroletter 45, November 1996 (Copenhagen: Danish National Association for Gays and Lesbians)
[43] See Duda, Alexandra, "Comparative Survey of the Legal and Societal Situation of Homosexuals in Europe," August 1995, in Euroletter 35, August 1995 (Copenhagen: Danish National Association for Gays and Lesbians); and Duda, Alexandra and Helmuth Graupner, "Comparative Survey of the Legal and Societal Situation of Homosexuals in Europe," September 1996, Sexual Consent (n.p.) and Euroletter, October 1996 (Copenhagen: Danish National Association for Gays and Lesbians)
[44] Jeffrey-Poulter, Stephen. Peers, Queers and Commons.
[45] Wintemute, Robert. Sexual Orientation and Human Rights, p. 114.
[46] Council of Europe, Collection of Decisions, p. 253.
[47] Id., p. 266.
[48] Wintemute, Robert. Sexual Orientation and Human Rights, p. 116.
[49] Council of Europe, Collection of Decisions, p. 277.
[50] Because the Scandinavian Registered Partnership laws passed prior to Iceland (1996) and Finland (1997) excluded children, and because none of the laws use the word marriage, they are not an aid to arguments under Article 12.
[51] Prior to the invention of microscopes, which permitted the discovery human reproduction involved the union of a woman's ovum with a man's sperm, it was believed that semen was an unformed person which formed into a human being when it was implanted into a woman's womb. A man who implanted his semen elsewhere was thus considered guilty of murdering 'his' children. Since women were considered merely vessels for the production of a man's children, especially the production of more men, lesbianism was usually a concern only if it interfered with a woman bearing her husband's children, since a) a woman could not bear a child to another woman, and b) most woman after the fall of Rome were ignored by a male-dominated system.
[52] Wockner, Rex. "Hungary Legalises Common-Law Gay Marriage." Euroletter 32, March 1995; and Pere Cruells, "Law in Spain Recognises de facto Couples," Euroletter 39, February 1996 (Copenhagen: Danish National Association for Gays and Lesbians)
[53] Dudgeon case, dec. 30 Jan 1981, p. 7.
[54] Id., p. 15.
[55] European Parliament. "Resolution on Equal Rights for Homosexuals and Lesbians in the European Community" (A3 - 0028/94), 8 Feb 1994.
[56] Ibid.
[57] Ibid.
[58] Wintemute, Robert, Sexual Orientation and Human Rights, p. 116, and Stephen Jeffrey-Poulter, Peers, Queers and Commons.
[59] The Latin familius originally referred to the servants of a household, then later was applied to all persons living in a household. The meaning of 'family' became gradually more restrictive as post-Roman Western history unfolded.
[60] Wintemute, Robert. Sexual Orientation and Human Rights., pp. 265-266.
[61] The information in Table III was obtained from these documents (cf. bibliography): The Danish Registered Partnership Act; The Norwegian Act on Registered Partnerships for Homosexual Couples; The Registered Partnership Act (Sweden); Ojala, Outi "A Bill for the Act on Same-Sex Marriage" (Finland); Reuters, "Iceland Gives Gay Marriage Legal Stamp"; Krol, Henk. "Gay Emancipation and Marriage in the Netherlands," De Gay Krant (Amsterdam: n.p., World Wide Web).
[62] Wintemute, Sexual Orientation and Human Rights, pp. 94-95, 270-271; and European Union, The Institutions of the European Union, p. 2.
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Reekie, Alan Fraser. "Ireland," data on decriminalisation of homosexuality in Ireland compiled from USENET soc.motss collection (NP. {Belgium}: Alan Reekie; posted to the World Wide Web, 21 Jan 1994, aree@dg13.cec.be, "Alan Reekie").
Scandinavia and Finland
Margrethe II, Regina, and the Government and Folketing of Denmark. The Danish Registered Partnership Act, trans. H.P. Clausen. (Christianborg Castle, Denmark: Margrethe R, 7 June 1989; posted to the World Wide Web, n.d., rwockner@netcom.com., "Rex Wockner").
Ministry of Children and Family Affairs. The Norwegian Act on Registered Partnerships for Homosexual Couples, (Oslo: Ministry of Children and Family Affairs, April 1993).
Ojala, Outi. "A Bill for the Act on Same-Sex Marriage," trans. by Mika Vepsalainen. (WWW: http://seta.fi/psuhde/pbill.html, 1996)
Reuters. "Iceland Gives Gay Marriage Legal Stamp," 27 June 1996. (Rekjavik: Reuters; reposted to marriage listserv, 28 June 1996, jackMSW@aol.com).
Standing Committee on Civil-Law Legislation. "Proposed Registered Partnership Act," trans. by Tobias Wikstrom (Stockholm: Standing Committee on Civil-Law Legislation, 1994; English translation posted to the World Wide Web, 5 May 1994, tobias@rfsl.se "Tobias Wikstrom").
Wockner, Rex. "Danes Make History: Gays Legally Marry." (Copenhagen: Rex Wockner, free-lance journalist, 1 Oct 1989; filed on the World Wide Web Saturday, 21 May 1994, rwockner@netcom.com., "Rex Wockner").
{Wockner, Rex ?}. "Norwegian Gays Marry After Change In Law." (NP: Posted to the World Wide Web, n.d., Queer Resources Directory, Norway, 1993.)
Other European
Cruells, Pere. "Law in Spain Recognises de facto Couples." Euroletter 39, February 1996 (Copenhagen: Danish National Association for Gays and Lesbians).
Duda, Alexandra, "Comparative Survey of the Legal and Societal Situation of Homosexuals in Europe," August 1995, in Euroletter 35, August 1995 (Copenhagen: Danish National Association for Gays and Lesbians).
Duda, Alexandra and Helmuth Graupner, "Comparative Survey of the Legal and Societal Situation of Homosexuals in Europe," September 1996, Sexual Consent (n.p.) and Euroletter , October 1996 (Copenhagen: Danish National Association for Gays and Lesbians).
Iacos, Ion. "Proposal in Romanian Parliament to Expand Ban on Homosexuals," Euroletter 45, November 1996 (Copenhagen: Danish National Association for Gays and Lesbians.)
International Gay and Lesbian Human Rights Coalition. "Press Release: Anti-gay Legislation Falling Throughout Europe," 28 May 1993. (N.p. {San Francisco}: Russ Gage/I.G.L.H.R.C.).
Krol, Henk. "Gay Emancipation and Marriage in the Netherlands," in De Gay Krant, n.p. (World Wide Web: De Gay Krant, n.d.).
Skolander, Bjoern, trans. "French No to Same-Sex Partnerships at Swedish Embassy," article in Dagens Nyheter, 3 April 1996 (NP.{Sweden}: Dagens Nyheter; English translation posted to the World Wide Web, 8 Apr 1996, skolander@bahnof.se "Bjoern Skolander"; reposted to Queerlaw listserv, 10 Apr 1996, ron@abacus.oxy.edu, "Ron Buckmire").
Verkerk, Hein "Resolution in European Parliament on Romania," November 1996 (Copenhagen: Danish National Association for Gays and Lesbians).
Books and Articles
Council of Europe. Manual of the Council of Europe. (London: Stevens & Sons, Ltd., 1970).
Dynes, Wayne R., Ed.; Warren Johansson and William A. Percy, Assoc. Eds; with Stephen Donaldson. Encyclopedia of Homosexuality, vol. I (New York & London: Garland Publishing, Inc., 1990).
European Union. The Institutions of the European Union. (Strasbourg?: European Union, 1995).
Heinze, Eric. Sexual Orientation: A Human Right--An Essay on International Human Rights Law. (Boston: M. Nijhoff, 1995).
Jeffrey-Poulter, Stephen. Peers, Queers and Commons: The Struggle for Gay Law Reform from 1950 to the Present. (London: Routledge, 1991).
Martin, Jorge. "English Polygamy Law and the Danish Registered Partnership Act: A Case for the consistent Treatment of Foreign Polygamous Marriages and Danish Same-Sex Marriages in England." 27 Cornell International Law Journal 419.
Stychin, Carl F. Law's Desire: Sexuality and the Limits of Justice. (London: Routledge, 1995).
Tatchel, Peter. Europe in the Pink: Lesbian and Gay Equality in the New Europe. (London: GMP Publications, 1995).
Waaldijk, Kees and Andrew Clapham. Homosexuality: A European Community Issue: Essays on Lesbian and Gay Rights in European Law and Policy. (Dordrecht, Netherlands: 1993).
Wintemute, Robert. Sexual Orientation and Human Rights: The United States Constitution, The European Convention, and The Canadian Charter. (Oxford and New York: Clarendon Press, and Oxford University Press, 1995).
Wockner, Rex. "Hungary Legalises Common-Law Gay Marriage." Euroletter 32, March 1995
Wortley, B.A., ed. An Introduction to the Law of the European Economic Community (Manchester, UK: University of Manchester Press, 1972).