Federalist Society's London Chapter Examines Judicial Activism in the EU
Wednesday, March 10, 2010
On March 8, the Federalist Society for Law and Public Policy's London Lawyers Chapter sponsored a panel discussion on the threats to the sovereignty of European Union member countries posed by a European Court of Human Rights that is becoming more active in deciding controversial social issues not falling within the scope of the European Convention on Human Rights that is the subject of the Court's authority. As moderator of the panel discussion, Jim Kelly, Director of International Affairs for the Federalist Society, delivered the following remarks.
This panel discussion, titled "National Sovereignty and European Justice: Lessons on Federalism from the Jurisprudence of the United States Supreme Court," will center on the important balance that must be struck between the role of the European Court of Human Rights and the sovereignty of national courts throughout Europe. In Lady Justice Mary Arden and Judge Douglas Ginsburg, we have two jurists very well-suited to examine this issue.
As desired by the two panelists, as moderator, my job is to take about 15 minutes to put this evening's discussion in the proper context and then, other than a few follow-up questions from me and audience questions at the end, leave it to the panelists to put forth their views relative to their respective American and European experiences.
After all, it is the American and European experiences with federalism that are at the heart of our discussion. In the case of the U.S., it is federalism from the perspective of the balance between the respective roles of the national Supreme Court of the United States and the highest courts of the individual states. In the case of Europe, it is federalism from the perspective of the balance between the respective roles of the supra-national European Court of Human Rights and the highest courts in the European Union member nations that are also parties to the European Convention on Human Rights.
However, prior to comparing these judicial aspects of American and European federalism, it is important to compare the respective ideals and principles that underpin federalism in each instance. The importance of comparing these ideals and principles came to me after reading in this week's issue of Time magazine an interview given by the European Union's present (and first) Foreign Minister, Britain's own Catherine Ashton. Foreign Minister Ashton's interview followed the Time cover story article titled "The Incredible Shrinking Europe." In that article, the authors lament that, less than six months into the taking effect on December 1 of the Lisbon Treaty, there has been little evidence that the EU will use the opportunity of the adoption of the Treaty to build a Europe that can rival the U.S. and China as a global power. Regarding the ideals that should be the starting point for defining and measuring the success of a global power, Foreign Minister Ashton's interviewers asked her: "What are Europe's ideals?" Her response was: "Democracy. Human rights. Wanting to see stable, secure nations with whom we enjoy political dialogue and economic relationships."
Foreign Minister Ashton's answer raises several points that are relevant to tonight's discussion.
First, as would naturally be the case for a foreign minister, it was a very outward, not inward, looking statement of ideals. Yet, if promoting democracy and human rights is the foundation of Europe's foreign policy, then it only makes sense that, to avoid hypocrisy, the EU must promote democracy and human rights internally, within its individual member nations.
Second, if the promotion of democracy and human rights is the EU's primary foreign policy objective; then, the EU needs an institution that is dedicated exclusively to examining, articulating, and promoting the substance of democracy and human rights. For now, the Strasbourg, France-based Council of Europe, formed in 1949 pursuant to the Treaty of London, plays that role.
Third, if the promotion of democracy and human rights is to be the EU's main export and its vehicle to becoming a global power, then there must be an institution at which the citizens of the EU can secure relief from violations of their human rights that they believe have not been redressed at the national level. For now, the Strasbourg-based European Court of Human Rights, or ECHR, formed in 1950 pursuant to the European Convention on Human Rights, plays that role. It is anticipated that, over time, the ECHR will be responsible for building a body of legal precedent that can be promoted by the EU as the definitive statement on the meaning of human rights. No doubt, the EU's planned accession to the Convention will facilitate this outcome by subjecting EU laws, regulations, and programs to the same human rights standards to which its member countries are held.
Finally, if the EU is to project to the world a united front in its campaign to promote democracy and human rights, then it is important for the Council of Europe and the ECHR to encourage each member nation of the EU to move as quickly as possible toward respecting civil, political, economic, social, and cultural rights as a body of universal and indivisible rights.
No doubt, this urgent pursuit of a democracy and human rights agenda that can be marketed globally will severely test the members of the EU and the principles of subsidiarity, proportionality, and the "margin of appreciation" followed by the ECHR in deciding its cases. That is because these principles are designed to recognize and respect the fact that the evolution of human rights occurs within the context of a specific culture, one with its own social and economic conditions; religious and other traditions; political structure and processes; and legal and governmental institutions. Frankly, some EU countries are further along in the realization of the long list of human rights ideals. Far from mere "laggards" who only need to be enlightened by experts on such matters, many of these countries have serious concerns about their sovereignty and their desire to address important questions about democracy and human rights at their pace, in their way, and in the context of their societies. There is a risk that the political leaders and institutions of the EU may go "too far, too fast," by placing unreasonable expectations and demands on the citizens and institutions of its member nations. Yet, the Council of Europe, ECHR, European Court of Justice, and EU officials do have valuable insights to offer and treaty-based and legislative responsibilities to fulfill.
Lady Justice Arden is one of the few jurists thinking seriously about the need for a deliberate and thorough analysis of the proper relationship between the ECHR and the national courts of the State parties to the Convention. Within the past year, she has written and spoken in significant detail about the need to reconcile the overlapping and, sometimes, competing roles of these different bodies, thereby making them more effective and appreciated. In May of 2009, she delivered a speech on this topic at the annual Hailsham Lecture. In January of this year, at a seminar to mark the official opening of the judicial year of the European Court of Human Rights, Lady Justice Arden delivered a speech titled "Is the Convention Ours?" In that speech, she explained her toolkit of suggestions for improving the system of supra-national adjudication of human rights, an explanation that I hope she can, at least briefly, repeat for us tonight.
Moving along to the U.S. situation, if, as Foreign Minister Ashton proposes, the ideals of the EU are democracy and human rights, then, for discussion purposes, I assert that the ideals of the United States of America are freedom and opportunity. As a result, we should consider how the respective ideals of the EU and the U.S.-democracy and human rights on the one hand; freedom and opportunity on the other-impact the issue of sovereignty between the ECHR and EU national courts on the one hand and the U.S. Supreme Court and state courts on the other.
If, in the case of the U.S., freedom and opportunity are the ideals, then life, liberty, and the pursuit of happiness are the animating principles behind these ideals. From a historic standpoint, placed along a timeline that measures the degree to which these principles have been considered, debated, and decided by the American public, their political leaders, and the courts, one could say that liberty received the earliest and most attention. In the Nineteenth Century, liberty was considered in the debates leading up to the Civil War and was addressed following the Civil War through amendments to the U.S. Constitution. Almost one hundred years later, the American public, Congress, and the federal courts debated, and more thoroughly enshrined in law and policy, the civil and political rights that would ultimately ensure the liberty to which all persons are entitled.
By the middle of the 1960s, most people thought that, by promoting and protecting civil and political rights, all U.S. citizens would be able to enjoy life and pursue happiness as contemplated by the Founders. Yet, beginning in the late 1960s, the concept of liberty as protected through civil and political rights, became a means used by the U.S. Supreme Court to promote, some say invent, social rights that far exceeded the notions of life and the pursuit of happiness envisioned by the Founders. The Court did so in a manner that usurped the right of states to decide such issues as the right to abortion and homosexual rights in the course of their democratic deliberations and determinations. Labeling such rights as "fundamental" ones, the U.S. Supreme Court applied a strict scrutiny test of judicial review, tougher than a rational basis test that merely required a state to evidence that the challenged law is rationally related to a legitimate government interest. As many of you know, the strict scrutiny test requires that the government show a compelling government interest for the allegedly offending constitutional provision or legislation; that it narrowly tailored the provision or legislation to achieve that goal or interest; and that it chose the least restrictive means for achieving that interest.
Fortunately, Judge Ginsburg is with us tonight to provide his valuable insights into this development in American jurisprudence, which, as evidenced by a few recent cases, the ECHR is embracing more and more.
If life, liberty, and the pursuit of happiness are the animating principles of the American ideals of freedom and opportunity, then, surely, liberty, equality, and fraternity are the animating principles of the EU ideals of democracy and human rights. These three principles, contained in the French motto, were well understood by the drafters of the 1948 Universal Declaration of Human Rights, many of who were French. Due to the more social and collectivist nature of these principles than the more individualistic principles underpinning the American experience, European leaders and institutions have long embraced the indivisible nature of human rights-that civil, political, economic, social, and cultural rights are a "package deal," none of which should be ignored or neglected on policy, cultural, or even financial grounds. The indivisible nature of human rights is reflected in the Charter of Fundamental Rights of the European Union, which, under the Lisbon Treaty, became the law of the land in Europe and covers all categories of human rights. Again, the enforcement of these rights by the European Court of Justice in conjunction with the enforcement of the Convention rights by the ECHR is something that is in the process of being considered and implemented via EU accession to the Convention.
It appears that, at the present time, the American and European experiences with federalism from a judicial standpoint are converging on the issue of social rights. The U.S. Supreme Court is challenging its citizens to embrace controversial rights, which the Court sees as being rooted in the dictates of liberty and the right of each individual to pursue his or her vision of happiness. Likewise, the ECHR is challenging the citizens of the State parties to the Convention to embrace those same rights, which it sees as being rooted in the dictates of equality and the fraternity to which people of different socio-economic classes, ethnic backgrounds, and orientations should subscribe. For instance, last Tuesday, in the case of Kozak v. Poland, the ECHR decided that the surviving partner of a same-sex couple that had been sharing an apartment owned by his deceased partner was entitled to succeed to the tenancy in spite of the fact that the applicable Polish law only granted succession rights to different-sex couples living in a de facto marital cohabitation relationship. In doing so, the ECHR viewed the Convention as "a living document," and discovered in Article 8, relating to the right to respect for family life, a right to privacy comparable to the one discovered by the U.S. Supreme Court in several sections of the U.S. Constitution.
In Kozak, while the ECHR accepted "that the protection of the family in the traditional sense is, in principle, a weighty and legitimate reason which might justify a difference in treatment," the ECHR further explained that, in this case:
respect for family life must necessarily take into account developments in society and changes in the perception of social, civil-status and relational issues, including the fact that there is not just one way or one choice in the sphere of leading and living one's family or private life.
Because, in the ECHR's opinion, the Polish Government had not advanced any convincing or compelling reasons to justify the distinction in treatment of heterosexual couples and homosexual partners at the time in question, the ECHR decided that Polish authorities, in rejecting Mr. Kozak's claim on the basis of his sexual orientation, had failed to maintain a reasonable relationship of proportionality between the aim sought (that is, protecting traditional marriage) and the means employed (that is, not granting cohabitating same-sex couples the same rights as is granted to heterosexual couples living in a de facto marital cohabitation relationship).
Thus, the ECHR has become an important part of domestic debates over pressing social issues. The Kozak decision followed by three months oral arguments at the ECHR in the abortion-rights case of A, B, and C v. Ireland, a decision in which will be forthcoming shortly. Meanwhile, last month, the Italian Government launched a formal appeal to the ECHR's Grand Chamber of a 2009 decision of an ECHR panel of judges in the case of Lautsi v. Italy. In that case, the Court held that, under the provisions of the Convention, the presence of crucifixes in Italian public school classrooms is contrary to the rights of parents to educate their children in line with their convictions and to the children's right to freedom of religion.
At this point, after having sufficiently stirred the waters, I will defer to our panelists, leaving them to calm the troubled seas and chart our course for the reconciliation of these types of judicial tempests.
Jim Kelly is the President of Solidarity Center for Law and Justice, P.C., a public interest civil and human rights law firm based in Atlanta, Georgia. The opinions expressed herein are his own.
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