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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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