Saturday, 5 July 2014

Why does Judge De Gaetano use scare quotes when writing about the marriage of a same-sex couple?

In his separate opinion to M.E. v Sweden, in which he argues that the European Court of Human Rights should have dismissed as manifestly ill-founded the applicant's claim that returning a homosexual man to a country that criminalises male homosexual acts violates rights protected by Article 3 of the Convention, Judge De Gaetano's use of punctuation is perhaps revealing of his feelings about same-sex relationships.

When referring to the applicant's marriage - which is a marriage solemnised by two people of the same sex according to Swedish law - Judge De Gaetano feels the need to twice put the word marriage in scare quotes. 

De Gaetano writes:

The fact of whether the applicant’s 'marriage' to N. was genuine or merely one of convenience did not, in reality, have to be decided by the domestic tribunals at that stage of the proceedings...

and 

There is nothing in that Statement of Facts as to the seriousness or otherwise of the 'marriage'.

There are three reasons to believe that De Gaetano's use of inverted commas are meant as scare quotes:
  1. Where De Gaetano uses inverted commas elsewhere in his separate opinion as speech marks he uses double (") marks (although he does, perhaps somewhat inconsistently, use double marks in respect of "gun-running"), whereas in respect of the word marriage he uses single marks.
  2. Nowhere in the majority judgment are inverted commas used around the word marriage, where it is used accurately to describe the legal relationship between the applicant and his spouse.
  3. When discussing marriage between persons of the opposite sex in other judgments, Da Gaetano does not place inverted commas around the word marriage (see, for example, his joint dissenting opinion in Nunez v Norway).
Scare quotes are, according to the Chicago Manual of Style (15th edition, § 7.58), quotation marks that 'are often used to alert readers that a term is used in a nonstandard, ironic or special sense'.

Or, as Wikipedia puts it, scare quotes are 'placed around a word or phrase to imply that it may not signify its apparent meaning or that it is not necessarily the way the quoting person would express its concept. The quotes serve a function similar to verbally prefixing a phrase with "so-called". When referred to as "scare quotes", the quotation marks are suggested to imply skepticism or disagreement with the quoted terminology'.

Separate opinions, because they are written by judges themselves rather than the Court's registry staff, are often revealing of judges' personal feelings towards particular issues. In this case, De Gaetano's use of scare quotes around the word marriage may be interpreted  as an expression of his feelings about marriage between persons of the same-sex.

De Gaetano's use of scare quotes could be read as pre-fixing the word marriage with 'so-called' in order to express a skepticism with and disagreement about using the word marriage in respect of same-sex couples. 

If this is the case, then De Gaetano ought to carefully consider the appropriateness of his  opinion, which implicitly calls into question the status of relationships which have been designated according to the law of a Council of Europe state as marriage. 

In Schalk and Kopf v Austria the Court stated that 'the question whether or not to allow same-sex marriage is left to regulation by the national law of the Contracting State' and that the Court must not 'substitute its own judgment in place of that of the national authorities, who are best placed to assess and respond to the needs of society'. (§ 61-62)

De Gaetano's use of scare quotes appears to question the legitimacy of using the term marriage in respect of persons of the same-sex and, as such, constitutes a judgment about the Swedish authorities' decision to extend marriage to same-sex couples.

This is not the first time that a separate opinion by Da Gaetano has raised questions about his approach to issues relating to homosexuality. In a joint partly dissenting opinion in Eweida and Others v the United KingdomDa Gaetano drew the problematic distinction between ‘gay rights’ and ‘fundamental human rights’.

In M.E. v Sweden, through the subtle use of punctuation, Da Gaetano's separate opinion can be interpreted as calling into question and undermining the status of a marriage between persons of the same sex solemnised according to the law of a Council of Europe state. Such an approach in the judgment of the Court should be regarded as unacceptable.  


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