Britain’s defense policy prohibiting homosexuals from serving in the armed forces was recently struck down by the European Court of Human Rights (ECHR). Formed in 1959 to enforce the United Nations’ Universal Declaration of Human Rights, the ECHR is a creature of the 41-nation Council of Europe. The court’s authority comes from the European Convention on Human Rights, a treaty under which the signatory nations have agreed to “undertake to abide by the final judgment of the Court in any case.” The enforcement of the court’s decisions is delegated to the Council’s Committee of Ministers.
The cases dealing with the British military pitted the Ministry of Defence’s policy declaring homosexuality to be “incompatible with service in the armed forces” against Article 8 of the Convention, which secures the “right to respect for private and family life.” The cases heard by the ECHR were originally reviewed in the British appellate system, and the military’s prohibition against homosexuality was upheld under a deferential “rational basis” standard. As one British judge phrased it: “the court may not interfere with the exercise of administrative discretion . . . save where the court is satisfied the decision in unreasonable.”
The European Court of Human Rights, however, used a stricter standard in its review. The ECHR asked whether the policy was “necessary in a democratic society.” In linking necessity and democracy, the ECHR averred that the “hallmarks of the latter [include] pluralism, tolerance, and broadmindedness.” After constructing this liberal trinity, the court cast aside the Ministry of Defence’s arguments that the ban on homosexuals was necessary to foster unit cohesion, avoid disruption, and provide soldiers living in close quarters a modicum of privacy. The ECHR belittled the ministry’s studies on the attitudes of service members towards homosexuality as “representing a predisposed bias on the part of a heterosexual majority against a homosexual minority.” Such a comment explains why the court’s trinity of democracy does not include majority rule.
In the end, judges from Poland, Lithuania, France, Austria, Norway, Britain, and Albania held that, because convincing and weighty reasons had not been offered for the ban, the Ministry’s policy could not pass muster under the European Convention on Human Rights, the one judge from Cyprus dissented.
Upon learning of the court’s ruling, Duncan Lustig-Prean, one of the litigants in the case who had been discharged from the Royal Navy because of his homosexuality, cheered the decision and noted that the “armed forces exist to defend the rights and freedoms of all members of society. They need to reflect the diversity of society they purport to defend.” Of course, under such reasoning, the mentally and physically handicapped, who are certainly members of society, should be mustered into the armed forces. If homosexuality is no longer a ground to keep Lustig-Prcan out of the navy, perhaps stupidity will suffice.
One might have hoped for some resistance in the British government to the court’s ruling, but Defence Secretary Lord Robertson solemnly promised that “[t]his Government, like all governments, has to accept the rulings of the European Court of Human Rights. ” Robertson further declared that all disciplinary cases pending against homosexuals would be put on hold. The fact that just three years ago Parliament, formerly the repository’ of British sovereignty, voted 188-120 to keep the ban on gays in place shows a revolution has taken place. Magna Carta and the English Bill of Rights now take a backseat to the universal rights of man as crafted by modern day Robespierres and Couthons.
Thomas Jefferson once described the federal judiciary as the “engine of consolidation.” Substitute the word “European” for “federal” and the future of the bureaucrats in Brussels and Strasbourg looks bright. Unfortunately, as the sun rises for the bureaucrats, it sets on the most important right of all, that of self-government. Perhaps the ECHR’s ruling will force Britons to recognize what they have lost while they still have time to recover their birthright.