Homosexuality and the European Court of Human Rights
By Paul Johnson
Routledge – 2014 – 256 pages
Homosexuality and the European Court of Human Rights is the first book-length study of the Court’s jurisprudence in respect of sexual orientation. It provides a socio-legal analysis of the substantial number of decisions and judgments of the Strasbourg organs on the wide range of complaints brought by gay men and lesbians under the European Convention on Human Rights. Providing a systematic analysis of Strasbourg case law since 1955 and examining decades of decisions that have hitherto remained obscure, the book considers the evolution of the Court’s interpretation of the Convention and how this has fashioned lesbian and gay rights in Europe. Going beyond doctrinal analysis by employing a nuanced sociological consideration of Strasbourg jurisprudence, Paul Johnson shows how the Court is a site at which homosexuality is both socially constructed and regulated. He argues that although the Convention is conceived as a ‘living instrument’ to be interpreted ‘in the light of present-day conditions’ the Court’s judgments have frequently forged and advanced new social conditions in respect of homosexuality. Johnson argues that the Court’s jurisprudence has an extra-legal importance because it provides an authoritative and powerful discursive resource that can be mobilized by lesbians and gay men to challenge homophobic and heteronormative social relations in contemporary societies. As such, the book considers how the Court’s interpretation of the Convention might be evolved in the future to better protect lesbian and gay rights and lives.
"Johnson’s book provides an incredibly thorough discussion of the sheer range of cases dealing with homosexuality that have come before the Court since its inception. It is clearly a useful and thought-provoking text for anybody interested in the Court’s jurisprudence in regard to homosexuality and its engagement with ‘moral’ issues more generally" - Flora Renz, Social and Legal Studies, 2014, Vol.23(2), 275277.
"[Homosexuality and the European Court of Human Rights] provides an extremely well detailed and clear analysis, that combines descriptive sections and prescriptive suggestions. The peculiar socio-legal perspective offers an original interpretation of the reasoning of the Court and it highlights how the legal culture of the Court, the scope that judges attribute to law and the moral judgment about the issue at stake shape the structure of legal actions and the judicial interpretation of the Convention. In conclusion, the Author's final remarks appear decisively convincing. Johnson, indeed, argues in favour of an explicit recognition of the Court in terms of a moral equality between heterosexuality and homosexuality and he advocates for a redefinition of the legal notion of homosexuality, so as to better legitimate the wide range of homosexual claims and secure the European safeguard of rights to which gay and lesbians are entitled. - Silvia Falcetta (University of Milan), Sociologia del diritto, 2(2), 2013.
Table of cases. Preface Introduction. PART 1: MAKING THE HOMOSEXUAL OF HUMAN RIGHTS 1. Emerging voices: homosexuality and the Commission 1955-1980. 2. An ontological struggle: the Court and the homosexual since 1981. PART 2: METHODS AND MORALS 3. Homosexuality in the judicial laboratory: instruments, interpretations, and evolutions. PART 3: EXISTING JURISPRUDENCE AND POTENTIAL FUTURE DEVELOPMENTS 4. ‘An essentially private manifestation of the human personality’: the limitations of Article 8. 5. The anti-discrimination provisions of the Convention: Article 14 and Protocol 12. 6. A right to marriage? Same-sex relationships and Article 12. 7. Expression, Assembly and Association: Articles 10 and 11. 8. Humiliation and debasement: degrading treatment and Article 3 Conclusion. Bibliography. Appendix 1: European Convention on Human Rights (truncated). Appendix 2: Chronological list of Decisions and Judgments of the Strasbourg organs in respect of homosexuality. Index
Paul Johnson is Anniversary Reader in Sociology at the University of York.