Federalism and the Dialogue over Equality. A Comparison of Rights in the United States and the European Union

The article analyses the dialogue between the laws and the courts in a federation (the United States) and a Union of states, which presents some features of a federation (the European Union). It considers the way this exchange triggers an evolution of the notion of Equality or Non-Discrimination through the example of discriminations grounded on sexual orientation. In the United States, there exist various types of relationships between State courts and the US Supreme court, which cannot be limited to the authority of the US Supreme court's decisions. State supreme courts initiate a dialogue with one another and with the US Supreme Court. The US Supreme court fully participate in this "dialogue on Equality" as it uses State supreme courts opinions as persuasive authority in support of the development of new principles of federal constitutional law. This illustrates the role of the States as "laboratories of jurisprudence". In the European Union, the situation is more complex because there are different European courts in charge with the issue of Equality (the European Court of Justice and the European Court of Human Rights) and national legal systems and national courts are heterogeneous. However, national laws and EU law communicate in a very direct dialogue when national courts refer to the ECJ for preliminary ruling. Just as in the United States, national courts and European courts look at one another and contribute together in the evolution of the conception of Equality. More than in the United States, these exchanges are fostered by the fact that free movement of people induces a confrontation between national legal systems. Eventually, the dialogue on Equality throws light on the virtues of US federalism and the singularity of the European Union. It also reveals the invisible part of each system which only comparison can show.