ECHR Upholds Denial of Right to Marry to Same-Sex Couples

On June  24, the European Court of Human Rights issued its decision in Schalk and Kopf v. Austria (App. No. 30141/04), concerning the right of same-sex couples to marry. (See the press release and judgment). Although the Court – for the first time – recognized that same-sex relationships fall within the purview of the Convention’s protection of ‘family life’, the Court held 4 to 3 that the Convention does not require States to allow same-sex couples to marry, and, accordingly, Austria’s denial of the right to marry was within the permissible margin of appreciation granted to States in interpreting the Convention’s protections of private and family life.

Although Austria recently enacted the Registered Parnership Act, which provides legal recognition of same-sex unions, such unions do not enjoy all the legal benefits of marriage, such as the right to adopt children or step-children or elect artificial insemination. Same-sex couples like Schalk and Kopf are still unable to enter into marriage contracts. At the time of their application, Austria offered no legal recognition of committed same-sex relationships and the couple had been continuously denied the right to enter into a marriage contract.

The applicants had alleged violations under Articles 12 (right to marry), 14 (private life) and 8 (family life) of the European Convention, in their 2004 application before the Court.

In arriving at its conclusion that Article 12 does not require that same-sex couples be allowed to wed, the Court relied heavily on current indicators of social and legal acceptance of such a right within Council of Europe Member States and, in the absence of regional consensus, held that States are best situated to “assess and respond to the needs of society” in light of the differing, “deep-rooted social and cultural connotations” attached to marriage in European societies.

Interestingly, in its analysis of Article 14 in conjunction with Article 8, the Court again turned to social acceptance of same-sex couples, this time finding that developing social attitudes towards and legal recognition of such relationships supported their inclusion under Article 8’s protection of family life.  The Court stated, “It is undisputed in the present case that the relationship of a same-sex couple like the applicants’ falls within the notion of ‘private life’ within the meaning of Article 8” (par. 90) and “[i]n view of this evolution [of social and legal acceptance] the Court considers it artificial to maintain that, in contrast to a different-sex couple, a same-sex couple cannot enjoy ‘family life’ for the purposes of Article 8” (par. 94). “Consequently the relationship of the applicants, a cohabitating same-sex couple living in a stable de facto partnership, falls within the notion of ‘family life’, just as the relationship of a different-sex couple in the same situation would” (par. 94).

However, in the absence of legal recognition of same-sex relationship in a majority of Member States, Austria’s law – although not conferring all the benefits of marriage – was sufficient protection for purposes of the Convention because it was consistent with other States’ practices. The Court found that, prior to Austria’s passage of the Registered Partnership Act, common practices among Member States would not have dictated that same-sex partners be legally recognized; accordingly, the majority held that Austria was under no obligation to have enacted the Act prior to 2010.

Although reiterating its understanding that disparate treatment based on sexual orientation requires “particular serious reasons by way of justification”, the Court found the Austrian law to fall within the “wide margin…usually allowed to the State…when it comes to general measures of economic or social strategy” because it had already held that Article 12 did not require that same-sex couples be given the same right to marry as different-sex couples. The Court therefore found it unnecessary to enter into an analysis of whether the Act’s disparate treatment pursued a legitimate aim and was reasonably proportional to the State’s aim.

The Court’s reliance on State practice and its failure to examine the legitimacy and proportionality of the disparate treatment were exactly the weaknesses highlighted by the three dissenting judges (Judges Rozakis, Spielmann and Jebens), who wrote:

8. Having identified a “relevantly similar situation” (paragraph 99), and emphasised that “differences based on sexual orientation require particularly serious reasons by way of justification” (paragraph 97), the Court should have found a violation of Article 14 taken in conjunction with Article 8 of the Convention because the respondent Government did not advance any argument to justify the difference of treatment, relying in this connection mainly on their margin of appreciation (paragraph 80). However, in the absence of any cogent reasons offered by the respondent Government to justify the difference of treatment, there should be no room to apply the margin of appreciation. Consequently, the “existence or non-existence of common ground between the laws of the Contracting States” (paragraph 98) is irrelevant as such considerations are only a subordinate basis for the application of the concept of the margin of appreciation. Indeed, it is only in the event that the national authorities offer grounds for justification that the Court can be satisfied, taking into account the presence or the absence of a common approach, that they are better placed than it is to deal effectively with the matter.

9. Today it is widely recognised and also accepted by society that same-sex couples enter into stable relationships. Any absence of a legal framework offering them, at least to a certain extent, the same rights or benefits attached to marriage (see paragraph 4 of this dissent) would need robust justification, especially taking into account the growing trend in Europe to offer some means of qualifying for such rights or benefits.

10. Consequently, in our view, there has been a violation of Article 14 in conjunction with Article 8 of the Convention.

Finally, the majority stated that it would not determine whether each aspect of Austria’s Registered Partnership Act satisfied the European Convention, because the applicants had not claimed to be directly affected by the provisions restricting parental rights.

Third-party interveners (amici) in the case included the FIDH, International Commission of Jurists, AIRE Centre, and ILGA-Europe.

June is also the month in which the United States celebrates LGBT Pride Month and cities around the world host Pride parades and other festivities to mark the anniversary of the gay community’s political empowerment following New York’s June 1969 Stonewall Riots.

For an understanding of laws granting legal recognition, the right to marry, or other benefits to same-sex couples, see these resources by ILGA-Europe (Europe), Human Rights Campaign (United States), NPR (United States), and Wikipedia (worldwide).

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