Testing Constitutional Pluralism in Strasbourg: Responding to Russia’s “Gay Propaganda” Law

In 2013, the Russian Federation amended Federal Law No. 436-FZ, “On Protection of Children from Information Harmful to Their Health and Development” (2013 law), introducing language making illegal the public discussion—or, in the law’s words, “propagandization”—of what it called “non-traditional sexual relationships.” Undertaken during a period of increasing domestic and international hostility, the law was intended by the government to be a bold, two-fold rejection of supposedly “European” values: first, as resistance to the gay rights movement, which is presented as unsuitable for Russia; and second, as a means of further weakening the freedom of expression in Russia. On both accounts, the 2013 law defies the European Convention on Human Rights (the ECHR) as interpreted by the European Court of Human Rights in Strasbourg (the ECtHR or the Court). As prosecutions under the 2013 law make their way through the Russian court system, a direct confrontation of authority between the Constitutional Court of the Russian Federation in St. Petersburg (the CCRF or the Constitutional Court) and the ECtHR seems inevitable. Perhaps recognizing this, the ECtHR has issued a series of rulings over the last several years that have placed it squarely in opposition with the direction of the Russian government in a variety of high-profile cases. In addition to accepting cases concerning Russia’s prohibition on the public discussion of homosexual relationships, analyzed in this note, the ECtHR has recently ruled against Russia concerning the sensitive Yukos affair and on the treatment of those detained in protest of Vladimir Putin’s return to the presidency. Given the inevitability of a large conflict, the ECtHR should move forward deliberately and rule the 2013 law to be a violation of the ECHR.