Defending rights. Between parliaments and courts

I draw what I am going to say mostly (but not only) from my experience as a judge of the Italian Constitutional Court and, lately, as its president. My issue moves from the increasing conflict between individual rights or individual needs that are perceived as rights, and segments of public opinion that consider these rights as being against the overall values of their society. Respecting traditions—they think—is much safer and less adventurous than recognizing new rights. Upon this premise, when somebody claims that his/her demand has to be recognized as a legal right even though not explicitly written in the books, what is the role of courts and what the role of parliament?

Quite obviously, people go to courts when they have a case to raise. They may write a letter to their parliamentarian and something may come out of it. However, if they think that a legal right is at stake, they promote a judicial action. Now, the parliament is not obliged to act and even less to take decisions upon a complaint or whatever coming from a citizen. To the contrary, courts have to take decisions, they are obliged to decide. How can they do it when the issue is controversial and therefore surrounded by not settled opinions? Am I entitled, as a judge, to somehow stand on one side instead of the other?

The answer apparently is very simple. If you are a court, you stand on the side of the law. If you are a constitutional court, you stand on the side of the constitution. Indisputably simple, but not so simple when you have to put it into practice. Let me start with a couple of examples. The first one is Roe v. Wade, the case in which the US Supreme Court, 50 years ago in 1973, decided that there is a right to abortion guaranteed by the federal constitution. The court admitted that there might be an interest of the states in regulating this matter, an interest related to the protection either of the health of the mother, or of the life of the child. However, the court excluded the need to protect this life since the time of conception and stated that, in the absence of specific difficulties, only when the fetus is “viable” (capable to live an autonomous life) abortion becomes not admissible. Somebody could ask where this right is written in the constitution. Furthermore, if legislation did exist before Roe v. Wade, this legislation was more prohibiting abortion, than allowing or regulating it. The Court explicitly answered to these doubts. Yes, there is no mention of the right to abortion in the Constitution. However, such a right is included in human liberty and falls under the umbrella of the 14th Amendment, which says that no state shall adopt laws limiting life, freedom, and property of US citizens without due process of law. In addition, it may also be protected by the 9^th Amendment, when it refers to rights retained by the people. This is my life, my private life and you have no right to interfere with it without solid reasons of public interest (which, before “viability”, do not exist).

The decision generated a profound change. Member states, which were against abortion, had to abide to the new federal rule, while the right to abortion entered the life of the Americans with all the imaginable implications. However, the issue remained and turned out to be more and more controversial. The anti-abortion movements, the pro-life movements, took root and became increasingly active and vigorous. Look at the two national parties today: one in favor of the right to abortion, the other one in favor of stricter and stricter limitations of it. Furthermore, we are being told that the former president of the United States appointed his three justices aiming at a Supreme Court fine-tuned with the pro-life movement and ready to overrule Roe v. Wade. We are waiting for such decision.

I give you another example, again from the United States, namely the case Obergefell v. Hodges on same-sex marriage in 2015. The decision was adopted with a stronger internal opposition than in Roe v. Wade. Roe v. Wade was a seven to two decision, while in this case the minority was four against five justices in favor. If you read it, it seems that there is no reason to have doubts about the right of anybody to marry anybody else, whatever the sex. It is a matter of equality, the Court said. We have an equal protection clause, again the 14th Amendment, and everybody has the right to marry anybody else without limitations by the law. We—the Court added—recognized this principle in the Loving case, in 1967, when a statute of Virginia that prohibited interracial marriages was declared unconstitutional precisely because it violated this right. Here, we have a totally similar case. We acknowledge there are religious objections to it. Yet, these objections fall under the guarantee of the 1st Amendment and our decision is not and cannot be an obstacle to their free expression.

Yes, this is indisputable. However, religious objections to same-sex marriages are not a matter of scattered individual opinions. Thousands and thousands of citizens, entire segments of the American society, share them. In their view, the disrespect of traditional principles in this area for the sake of individual rights threatens the morality and the existence itself of the essential social texture.

I do not enter into the merit of the dispute. My point here is another one. When the request of recognizing an individual right, whatever it is, raises such an intense divergence of opinions, a sort of confrontation between different collective identities inside our societies, is it for the courts to make a decision or is it for the parliaments, the bodies representing the electors and reflecting their opinions and their wills?

You might answer that, generally speaking, new rights, however covered by the one or the other constitutional clause, are minoritarian by definition. Therefore, it is more for the courts, which are non-majoritarian institutions, than for the parliaments to stand for them. There is truth in this answer. Not always, though, and here we have to distinguish, there is a great need to distinguish.

It may happen that the decision of the court is the right decision at the right time, even if no parliamentary majority would be ready to adopt the same stand. Let us go back to the Loving case, the case the Court used as a precedent for the same-sex marriage. In Loving the state law that prohibited a white gentleman and a black lady to get married was declared unconstitutional. This decision was the right decision at the right time. Probably, when the decision was adopted, in the year 1967, it was still minoritarian in the white segment of American society, but nobody dared to raise any kind of objection. There was no possible moral reason, no tradition worthy of respect one could claim vis-à-vis a decision like this. Actually, it was simply incredible that a few decades ago, this kind of prohibition still existed in a state of the American Federation.

Let me give you a different example drawn from my Italian experience. We had a criminal clause, according to which a married woman who had even a limited, short relationship with a third gentleman was to be punished for adultery, a crime that in our penal code existed only against married women, not against married men. Initially, in 1961, our Constitutional Court decided that this clause, even though discriminatory, was legitimate because the adultery by the woman is much more offensive towards the family union, which is a constitutional value, than the same thing by a man. Seven years later, in 1968, the Court said the opposite. Punishing her adultery only is against the constitution because what really is offensive for the unity of the family is not the conduct of the woman, but discrimination of women in the legal treatment of that conduct. Quite likely the parliament was not ready at the time to take the same decision. However, also in this case, the decision was the right decision at the right time. The words of the constitution had remained the same, but the Constitutional Court gave them a different meaning by way of interpretation. Here too, as in Loving, nobody objected.

So, there are cases in which the active support to a new right might still come from a minority, but a judicial decision recognizing it with solid arguments, directly and persuasively drawn from the Constitution, is widely accepted. In other cases, when around the new right there is a harsh and unsettled dispute, a judicial decision that recognizes it, not necessarily solves the dispute. It may also happen that its consequence is an even harsher and wider conflict, as it was the case after Roe v. Wade.

Several years later, Justice Ruth Bader Ginsburg, who (before becoming a member of the Court) had promoted the decision, publicly expressed the doubt whether it could have been better for the abortionist movement to continue its political fight for the recognition of abortion at the state level. Doing so—she argued—would have prevented the pro-life movement from growing so strong and intolerant; to the point of successfully lobbying for the overruling of Roe v. Wade and for the adoption by the States of limitations and prohibitions much stricter than the ones that had existed before.

In conclusion: the difference between the two types of cases does exist and a court should always perceive it. However, the difference not always is so neat and clear and remedies to cope with the gray area should be looked for. The first one is cooperation between courts and parliaments, which my Court has repeatedly experienced. Sometimes we suspend our decision and explicitly write that the suspension intends to give parliament the time to intervene. This was the case of the assisted suicide, punished at the time by a criminal clause that did not distinguish at all among the different situations in which the demand for assisted suicide may arise. If a friend of yours is suffering from depression and wants assistance to end his/her life, you may not necessarily feel a moral obligation to assist him/her. What if your friend is terminal in his/her suffering, with pains that no medicine can limit, with certainty to die and enduring survival through the help of machineries? In this case he or she may think that there is no dignity anymore in his or her life and may ask the others: “Let me go. Allow me to go”. Our court was well aware that the case was controversial. You know how the Catholic position is relevant in Italy, not necessarily because of active interventions of the Church, but for the role of catholic voices in the political arena. Despite this position, we clearly asserted that, in a case like this, the criminal prohibition is against the Constitution. However, there are conditions to be set, there are guarantees to be respected. Therefore, we asked the parliament to set what might be needed for the exercise of this new right. We gave the parliament a year, the year passed, and nothing there was achieved. They discussed the issue repeatedly, but their divisions did not allow them to reach a shared decision. Eventually we made our decision: yes, in this case there is the right to be assisted and nobody can be punished for this assistance. We stated some conditions based on the existing legislation, but openly invited the Parliament to add whatever it deems appropriate.

In other cases, on issues perhaps less controversial than this one, this kind of institutional cooperation has worked more successfully. In my view, it has to be patiently pursued for the existing alternatives are really few. An alternative a court can activate on its own is relying on a basic principle that exists for the interpretation of any constitution: nothing is absolute in a constitution and even fundamental rights have to be balanced with other constitutional values, from which limits to them might arise. Upon this premise, an appropriate balancing can certainly solve difficult issues, but there is a clear limit to such a solution: the distance between the conflicting values—the distance as the diverging voices of your society reflect and express it—must be reasonably narrow. If it is not so and nonetheless the court decides recognizing the though limited primacy of one of the two extremes, namely, of the individual right, its own legitimacy might be at stake.

Let me make a final example in relation to our European courts and their role vis a vis Poland and Hungary. Here we cope with two national communities that are heavily marked by the weight in them of traditional and conservative values, frequently against the values to which the other states of the European Union have arrived after decades of civil development and evolution. During those decades, Hungary and Poland were under communism and therefore not exposed to the exchanges and interactions that were intervening in our Western societies. When communism faded away, they remained with their Catholic conservative values, with a great sensitivity to their national identities, with a patrimony that many Poles and Hungarians felt and still feel ready to defend against the different and far more progressive values of the other Europeans.

The European Court of Justice and the European Court of Human Rights are perceived as the institutions that impose such values upon all the Europeans and their decisions are frequently surrounded by wide hostility. It is easy for the populist runners of the two countries to challenge, in particular, the primacy of European law, as interpreted by the Court of Justice, and to support the overall supremacy of national Constitutions. At the moment, this is where we are.

I stop here. My purpose was to highlight a problem, a huge problem. I hope I have done it, offering demands and not answers, doubts and not solutions. Sorry for this.