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56 Colum. J. Transnat'l L. 467 (2017-2018)
Europe's Moral Margin: Parental Aspirations and the European Court of Human Rights

handle is hein.journals/cjtl56 and id is 479 raw text is: 







Articles


Europe's Moral Margin: Parental Aspirations
    and   the  European Court of Human Rights


                           CLARE  RYAN*

       The  European  Court  of Human  Rights (ECtHR)   bal-
       ances along two axes:  individual right vs. government
       interest and national vs. supranational judgment. The
       Court calibrates the level of deference it affords States
       through  the margin  of appreciation, a doctrine de-
       signed  to vary how  strictly the supranational court
       will scrutinize national decisions. This Article chal-
       lenges the way  in which the Court deplovs margin  of
       appreciation in order to defer to sensitive moral and
       ethical decisions taken by  domestic institutions. I
       call this deference the moral margin. Although  the
       European  Convention  on Human   Rights explicitly au-
       thorizes the Court to take protection of morals into
       account when  weighing  rights claims, I argue that the
       Court  has used  this authorization in a manner  that
       fails to honor its role within Europe. I critique the
       moral  margin  on  two grounds.  First, in practice,
       the Court  has  narrowed  its definition of sensitive
       moral  and ethical issues to cover almost exclusively


    *   Ph.D. Candidate in Law, Yale University. Many thanks to Professors Di-
eter Grimm, Al Klevorik, Douglas NeJaime, Judith Resnik, Susan Rose-Ackerman,
Scott Shapiro, and Alec Stone Sweet; and for the insightful feedback from Judge
Helen Keller (European Court of Human Rights) and Justice Marta Cartabia (Con-
stitutional Court of Italy). Thanks as well to my colleagues Danieli Evans, Claudia
Haupt, Alyssa King, and the participants in the Yale Law School Ph.D. legal schol-
arship workshop. My thanks also to the lawyers of the Research and Library Divi-
sion, Office of the Jurisconsult at the European Court of Human Rights, with whom
I worked from 2014-15, who taught me much of what I know about the Strasbourg
system. I am grateful to the students at the Columbia Journal of Transnational
Law for their thoughtful editing. All errors are my own.

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