Same-Sex Couples Before the ECtHR: The Right to Marriage

Abstract

This chapter analyses the jurisprudence of the European Court of Human Rights on the recognition of the right to marriage for same-sex couples. It focuses on the Court’s 2010 judgment in the well-known case Schalk and Kopf, referring also to other cases on the subject. The discussion highlights important aspects of the evolutive approach of the Court and the limits of the decision of 2010, particularly with regard to the absence of a European consensus on same-sex marriages among the States Parties to the ECHR. The conclusion provides some observations on recent and future developments, both in the case law of the Court and in the legislation of the Member States.

Post Scriptum

On 7th November 2013, the ECtHR decided applications no. 29381/09 and no. 32684/08 referred to in para. 17.5 of this chapter. In the judgement, the Court reiterates its considerations in Schalk and Kopf on the application of Article 8 to same-sex couples, stating that the relationship of same-sex couples falls within both the notion of “private life” and the notion of “family life”, but also interestingly adding that a lack of cohabitation between the two partners does not deprive the relationship of the stability necessary to form a real couple (para. 73). On the merits, the core of the observations of the Court lies in the application of the principle of proportionality, in order to analyze the respect of the margin of appreciation recognized to the State in the treatment of same-sex couples. Even though the Court correctly takes note that there is no uniformity on the subject among the legal systems of the ECHR States parties, it also confirms that “a trend is currently emerging with regard to the introduction of forms of legal recognition of same-sex relationships”. On the specific discrimination between same-sex and opposite-sex couples in the matter of accessing to civil unions, as in the case of the Greek legislation at stake, it is noteworthy to underline that the Court, in considering all the pertinent national legislations, observes that “Lithuania and Greece are the only ones to reserve it exclusively to different-sex couples” (para. 91). For these reasons, the Court found a violation of Article 14 taken in conjunction with Article 8. The decision, as stressed in this chapter, confirms the trend to reduce the State’s margin of appreciation in order to enact legislations which discriminate same-sex from opposite-sex couples in the enjoyment of identical rights. It is also interesting to note that the “Court continues to use the weapon” of the European trend as the most important parameter to analyze the conformity of national measures to the ECHR, assessing not only the existence of a general trend towards forms of legal recognition of same-sex relationships, but even a sub-level of this trend (formed by just 19 of the 47 States member of the Council of Europe) which becomes essential to find a violation in the present case. Thus, it seems that the only way to enhance the protection of the same-sex couples in the framework of the ECHR is the very flexible application of the method of the European consensus, which implies the appreciation of not particularly wide trends. Maybe this is the only possibility to “open the doors” of the ECHR to same-sex couples, but the problem to limit the use of this evolutive method of interpretation of the ECHR still remains, waiting for a future modification of the Convention that would expressly consider gay people’s rights and interests.