Marriage: Gender and Conjoined Twins

[Francisco Martin]

Prof. Jurij wrote:

> I know that foreign practice is not of much relevance for US, but here are
> two cases from the top European courts - European Court of Human Rights
and
> EU Court of Justice. They both held that ban of transsexuals' right to
marry
> is violation of human rights. In one of the earlier decisions, though,
ECHR
> upheld ban on gay marriage. Therefore, to answer prof. Martin's question,
at
> least in Europe gay marriage and transsexual marriage is treated
> differently.

COMMENT:  Thanks for pointing out the cases to the listserv.  I was aware
of these cases.  I would not give up on the relevance of ECJ and ECtHR case
law to U.S. constitutional construction.  It is absolutely relevant given
recent Supreme Court cases.  

Furthermore, it is important to note that ECtHR's failure to recognize that
the right to marriage extended to gay couples was based on the failure of
the ECHR states-parties to reach a consensus on gay marriage.  However, the
ECtHR has adopted the technique of "evolutive interpretation" that
recognize consensus may come about.  Anyway, the ECtHR's jurisprudence on
this matter probably would not be relevant given the Full Faith and Credit
Clause of the Constitution -- although there probably are folks that would
disagree with me on this.

Francisco Forrest Martin