Silly season continues. Just one month after the US Supreme Court’s aberrant decision in the case of Obergefell vs. Hodges, the Fourth Camber of the European Court of Human Rights has today issued a decision, Oliari and Others v. Italy, in which it affirms that Italy’s (so far) principled and steadfast refusal to legislate for registered same-sex partnerships was a violation of the Right to respect for the Private and Family Life of the sodomitic couples seeking such legal recognition.
The decision is largely based on the fact that recently there have been some decisions both by the Italian Constitutional Court and the Court of Cassation calling for a juridical recognition of the relevant rights and duties of homosexual unions, a measure which could only be put in place by Parliament. However, the Parliament has so far refused to adopt such a measure.
In the ECtHR’s view, this is tantamount to “a deliberate attempt to prevent the implementation of a final and enforceable judgment, … tolerated, if not tacitly approved, by the executive and legislative branch of the State” that is “capable of undermining the credibility and authority of the judiciary and of jeopardising its effectiveness.”
This reveals a rather peculiar understanding, on the ECtHR’s side, of the role of judges. Rather than just applying the law as it has been adopted by the law-makers, their new role is to tell the law-makers which laws they have to make. Failure of a democratically elected parliament to comply with such an order is termed “contempt of the court”, or “human rights violation”. In other words, with this absurd judgment the ECtHR has ditched both the separation of powers and the rule of law. But obviously, when it comes to furthering the policy interests of sodomites, no sacrifice in terms of fundamental legal principles seems too big.
The ECtHR’s newest aberration does not go as far as saying that all Council of Europe Member States must now give legal status and recognition to sodomitic relationships, which, besides being considered immoral by many, are generally known to be infertile and unhealthy. The effect of the decision appears limited to countries like Italy where a Supreme Court calls for legislation and the law-making body fails to obey. In short, this judgment can be summarized as being directed against the separation of powers, and against democracy. The conclusion is: the mad pretentions of judges must in all cases prevail over the will of parliaments.
Currently, there still is a majority of CoE Member States that recognize neither same-sex “marriages” nor same-sex “civil partnerships”. And this is good so, and will remain so. Even Italy is unlikely to rush the adoption of a “civil partnership” law as a result of this benighted ECtHR decision; instead, we may expect the Italian government to request the referral of the case to a Grand Chamber.
There are however some further aspects that should be noted:
- No matter what the ECtHR’s deluded college of judges says, it is a biological fact that two persons of the same sex cannot produce offspring and found a family. The notion of “family” that the Court attempts to established is based on pure sentimentality, unrelated to any objective reality.
- As regards the right to respect for private life, there is no doubt that sodomy (just as pedophilia, zoophilia, or any other kind of sexual perversion) falls within the remit of that notion. This, however, only means that the State should abstain from unnecessary interferences or unnecessary legislation. But what the applicants in today’s case are requesting is precisely that which Article 8 of the Convention should protect them against: state interference through (unnecessary) legislation!
- It follows that what the applicants really want is not respect for their private lives but the direct opposite: a public status. They want all the world (including the State) to know about, and to applaud, their infertile and health-endangering sexual perversions.
With judgments such as this, the ECtHR is thus perverting the distinction between public and private. However, this obvious and glaring intellectual confusion is not surprising in an institution that has long abandoned any serious attempt of acting like a court of law.
The question of a deep and comprehensive reform, if not the outright abolition, of the ECtHR is now more urgent than ever.