Evolutive Interpretation and Flexibility. A Critical Analysis of Spanish Constitutional Court’s Decision On Same Sex Marriage

Abstract

In this paper I present the main arguments displayed in the Judgment 198/2012, on same-sex marriages, of Spanish Constitutional Court, regarding both the position of the Grupo Popular and the decision adopted by the Court and individual opinions. This will help me to analyze two interesting questions from a philosophical perspective. On the one hand, I will reflect on the use of evolutionary interpretation as an interpretive technique. On the other hand, I will analyze whether the term “marriage” is flexible, on the basis of an important distinction about how we use general terms, to wit, the distinction between flexibility and tolerance. Bringing evolutionary interpretation and flexibility into connection will help me to show that the Constitutional Court’s argument is less criticizable than, in principle, one might think.