[rayiner]

That’s typical for courts in Europe. For example, I don’t think any EU country legalized same-sex marriage by court order. I’m also not aware of any European country where abortion was legalized by court ruling. The US Supreme Court is unusual in running roughshod over the political process as much as it does.

[vitus]

> The US Supreme Court is unusual in running roughshod over the political process as much as it does.

This is in part because the US legal system is based on common law / case law, whereas most of Europe is based on civil law.

[Gibbon1]

I've been thinking of late that the role of lawyers in shaping US laws and institutions is under appreciated. Deference to courts is probably a result of that.

[skissane]

That’s not really true - because most other common law jurisdictions aren’t like the US in this regard, the US is actually an outlier among common law countries, most of which prefer to resolve controversial social issues through legislative rather than judicial processes

[vitus]

I don't disagree that the US is an outlier even compared to other common law jurisdictions such as the UK, but I'd argue that the common law framework is a necessary (albeit insufficient) condition for what the US judiciary is doing.

For instance, decriminalization of abortion in Canada: https://en.wikipedia.org/wiki/R_v_Morgentaler

[dctoedt]

> I don’t think any EU country legalized same-sex marriage by court order. I’m also not aware of any European country where abortion was legalized by court ruling. The US Supreme Court is unusual in running roughshod over the political process as much as it does.

Any thoughts about whether, in EU countries, it might be easier for the political process to make changes via legislation and constitutional amendment --- as opposed to the U.S. system of giving minority interest groups such extensive blocking rights?

(The U.S. system sometimes reminds me — and not in a good way — of the liberum veto of the old Polish-Lithuanian Commonwealth, in which every (noble) member of the Sejm, or parliament, could block government action. Historians seem to agree that, over the long term, this arrangement was seriously-bad news for the Polish nation; quaere whether the U.S. might go down that path itself.)

https://en.wikipedia.org/wiki/Liberum_veto

[skissane]

Australia’s constitution was partially based on that of the US. We are also a federation of states, with a federal Senate in which the least populous state has the same number of senators as the most populous. So we have rather similar potential for “blocking minorities” as the US.

And yet we have a reasonably liberal abortion regime nationwide - which is not due to the courts (we have no constitutional right to abortion), but simply the outcome of the democratic legislative process in each state. I think it never became quite the political/cultural hot potato here as it did in the US, in part because it was left up to elected officials rather than unelected judges. Even if someone doesn’t like the current situation, it is harder to object to the legitimacy of it when the people the voters voted for are responsible for it.

I think one relevant difference is that as a country with a smaller population and a shorter (post-colonisation) history, there is arguably less inter-state cultural diversity in Australia. We don’t really have “red states” and “blue states” - some states lean more one way than the other, but it is much less polarised than the US.

[oerpli]

Austria would be one such country. Technically, a law was passed but a court decided that a law must be passed and if the government didn't it would have been dismissed.

[pyuser583]

Why doesn’t that restraint apply in this situation?

[rayiner]

Article 14 of the European Convention on Human Rights is pretty cut and dry:

> ARTICLE 14 Prohibition of discrimination 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.

I suspect the fiction of fitting a “male breadwinner” exception into this clear language became unsustainable.

[pyuser583]

I don’t know how to read this as saying it’s ok to prohibit choosing based on sex.

Doesn’t this forbid restrictions on same-sex marriage?

[DangitBobby]

I'm sure if a court case were brought to their attention they'd agree with you. Might be similar to how the US SC (and other high courts) doesn't weigh in until lower courts have made a ruling, which means someone had to file suit for them to even take a look.

[wahern]

The European Court of Human Rights has repeatedly faced the question of gay marriage and has denied the find such a right each time. One of the more recent cases is Chapin and Charpentier v. France, 2016:

> In Chapin and Charpentier v. France, 2016, the Court reiterated that neither Article 12, nor Article 14 in conjunction with Article 8, which was more general in purpose and scope, could be interpreted as imposing an obligation on the Contracting States to open marriage to same sex couples.

https://www.echr.coe.int/Documents/Guide_Art_12_ENG.pdf (see also https://eclj.org/marriage/the-echr-unanimously-confirms-the-...)

I don't know much about European law but it seems one of the principal reasons is that Articles 8 and 12 specifically speak to marriage and are worded in a manner (in the court's opinion) which presume heterosexual marriages, effectively circumscribing the scope of potential Article 14 anti-discrimination protections wrt marriage.

[rayiner]

Article 12 states: “Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”

The EHCR has found the use of “men and women,” along with the “historical context” in which the clause was adopted, to mean that Article 12 applies to marriage as traditionally understood: between one man and one woman.