Equal marriage rights and the European Courts

The legalisation of same-sex marriage has taken off globally in the last thirty years, especially in Europe; thirty-three countries around the world, nineteen of which are in Europe, have opened up civil marriage to same-sex couples. The Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) have also had their share of equal marriage rights cases before them to decide upon. This contribution discusses the role the two European courts have played in this field and how their case law has developed, in somewhat parallel stages, throughout the years.


Introduction 1
On 16 June 2022, the Constitutional Court of Slovenia ruled that the ban on samesex marriage in the Family Code violated the Slovenian Constitution. 2 It furthermore ordered the Parliament to amend the legislation within six months. However, because the two judgments took effect immediately, this resulted in the legalisation of samesex marriage in Slovenia from that day onwards. Slovenia is now the 14 th member state of the European Union (EU) (out of 27) and the 18 th (out of 46) of the Council of Europe (CoE) where same-sex marriage is allowed. Furthermore, legislation adopted in Andorra will take effect in February 2023, making it the 19 th CoE member state where same-sex couples have the same rights and status in marriage as different-sex couples do.
The possibility for same-sex couples to get married is quite a 'recent' one as it was only 2001 when the Netherlands became the first country in the world to open up civil marriage to same-sex couples. In the 21 years that followed, 32 other countries, spanning from Ecuador to Australia and from Norway to South-Africa, joined. In Europe, most countries achieved marriage equality 3 through legislative processes, though litigation and referenda also took place. The Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) have also had their share of equal marriage rights 4 cases. Inevitably, cases were brought before the two courts by applicants claiming that their rights under EU law and the European Convention on Human Rights (ECHR) 5 were violated. This contribution discusses the role the two courts have played in this field and how their case law has developed, in somewhat parallel stages, throughout the years.
alone the recognition of same-sex relationships. In fact, marital status was a competence that was historically left to the jurisdiction of the member states of the EU and the CoE themselves. Hence, states in Europe individually decided who was able to marry, under which conditions, and which types of relationships outside of marriage deserved to also be legally protected. 8 The earliest, more largescale, forms of LGBTQ+ activism in Europe started to emerge in the 1950's, 9 which subsequently led the LGBTQ+ community to start to organise itself more professionally. 10 The first big and noteworthy LGBTQ+ rights related case was that of Dudgeon v. UK in which the ECtHR decided that a law in Northern Ireland prohibiting and regulating male intimacy amounted to an unjustifiable interference with Art. 8 ECHR and the right to private life. 11 After the Dudgeon case and the decriminalisation of homosexuality in many European countries, LGBTQ+ individuals were now free to live their lives and have same-sex relationships in the open. Applicants subsequently also started more court cases to have further rights protected and enforced. 12 As Robert Wintemute has indicated in his research, the emphasis from 'basic rights' started to shift more towards 'sex rights', and later to 'love rights'. 13

The first stage of development; testing the 'private life' waters
Yet, as LGBTQ+ rights were not part of the general human rights discourse in Europe, the outcome of the initial equal marriage rights cases was abysmal for same-sex couples. 14 Consider the case of X&Y 15 in which the ECtHR decided that the applicants' same-sex relationship and their deportation did not fall within the scope of the right to respect for family life ensured by Art. 8 ECHR. Moreover, the Commission found that even if the relationship of a same-sex couple would fall within the scope of the right to respect for private life, it would not within that of family life. In the case of W.J. & D.P., 16 the Commission took it a step further and proclaimed that heterosexuals unmarried couples living together as husband and wife can be assimilated to a family, and that these relationships deserve special protection in society. The differential treatment of same-sex couples in stable relationships in comparison to somebody in the same position whose partner is of the different-sex was there- 8 Think here for instance of civil unions, registered or domestic partnerships, or co-habitation agreements. 9 See for example the establishment of the International Committee for Sexual Equality (ICSE), which connected existing gay groups in different European countries with each other, Rupp [7], pp. 29-30. 10 Ayoub & Paternotte [1]. 11 Dudgeon v. The United Kingdom, ECHR (1981), No. 7525/76. Though Art. 8 ECHR encompassed more than just the right to respect for private life; it also contained the right to respect for family life. 12 See for a great overview of LGBTQ+ related cases before the ECtHR Johnson's book 'Homosexuality and the European Court of Human Rights': Johnson [3]. 13 Wintemute [15]. 14  fore allowed. 17 In the case of S v. United Kingdom, 18 it was held that the applicant's same-sex relationship with her deceased partner also fell outside the scope of Art. 8 insofar as it protected the right to respect for family life. An eviction thus did not amount to discrimination. 19

The second stage of development; a reinterpretation of 'family' and 'marriage'
It thus became clear that in order for same-sex couples to obtain the protection they sought after, their relationships would need to be considered falling within the scope of 'family life'. A shift in the reasoning of the concepts of 'family' and 'marriage' was consequently needed. Accordingly, a second stage of equal marriage rights cases was heralded in the years thereafter with cases being decided on the legal recognition of same-sex relationships (be it civil unions, registered partnerships or marriage) or relationships in which one or more trans individuals were involved. 20 One line in the reinterpretation was to be seen in the cases of Karner 21 and Kozak. 22 Both cases concerned the succession to tenancy of a same-sex partner after the passing of the late partner and involved the invocation of Arts. 8 and 14 ECHR (on the prohibition of discrimination of persons in similar situations). The ECtHR was asked to assess Karner's differential treatment in comparison to surviving partners of the differentsex. The Court found that Austria did not offer convincing and weighty reasons justifying the narrow interpretation of the Austrian provision that prevented a surviving same-sex partner from relying on it. 23 In Kozak, the Court called a succession of tenancy by a same-sex partner a 'de facto marital cohabitation' 24 and established that under Art. 8 ECHR, respect for family life must also consider developments in society and changes in the perception of issues, including the changing way of leading and living one's family or private life. A full exclusion of same-sex partners from tenancy-succession rights by a state would not be proportionate to protecting the traditional family unit, 25 especially if there were also no convincing or compelling reasons put forward that would justify the differential treatment. In both cases, the Court established a violation of Art. 14 in conjunction with Art. 8 ECHR.
Another line of cases was to be seen in the Court's case law on Art. 12 ECHR on the right to marry and to found a family. One of the first times the Court elaborated on the concept of marriage was in the case of Rees, 26 which concerned an individual that 17 Id., para. 5. was born female and later in life transitioned to male. The Court found that the right to marry as understood by (the wording of) Art. 12 ECHR referred to the traditional marriage between persons of the different, biological, sex, and explained that the provision mainly concerned to protect marriage as the basis of the family. Because Rees did not meet this notion, there was no breach of Art. 12 ECHR in the inability. 27 In C. and L.M., 28 the European Commission of Human Rights repeated the Court's views in Rees and found that a same-sex relationship between a female trans individual and their lesbian partner did not give rise to a right to marry and found a family within the meaning of Art. 12 ECHR. A deportation of the partner would therefore not violate the provision. 29 In Cossey, 30 the Court continued with the use of biological criteria for determining a person's sex for the purposes of marriage. Considering Cossey was born male and later transitioned to female, there was no violation of Art. 12 ECHR in not being able to marry. This view was repeated in Sheffield and Horsham. 31 The Court's reasoning finally flipped in the Goodwin case. 32 It found that since the adoption of the ECHR, there had been major social changes in the institution of marriage as well as dramatic changes in medicine and science in the field of transsexuality. For this reason, solely biological factors could not any longer be decisive in denying legal gender recognition of post-operative trans individuals and that other factors (such as the views of medical professions and health authorities) were also important. The Court also noted that the wording of the recently adopted Art. 9 of Charter of Fundamental Rights of the European Union (EU Charter) 33 perhaps for this reason deliberately departed from the wording of Art. 12 ECHR that explicitly speaks of 'men and women'. 34 The Goodwin case was revolutionary for trans individuals wanting to marry. Ever since, same-sex couples have tried to persuade the Court to change its reasoning on Art. 12 ECHR for them as well, yet to no avail, 35 because marriage carries a 'special status' in Strasbourg. 36 In 2010, the Court delivered its decision in the Schalk & Kopf 37 case which concerned an Austrian same-sex couple that wanted to get 27 Id., paras. 48-51. 28 36 Johnson [3] and Koffeman [6]. This was even in the case of tax benefits only available to married couples in jurisdictions where same-sex couples could not marry, nor enter into civil unions in order to obtain similar rights, see 'Courten v. married. The Court started it analysis of Art. 12 ECHR by establishing that its wording was chosen deliberately, especially considering the 1950's context in which the Convention was adopted and when marriage in the traditional sense was understood to being a union between a man and a woman. 38 The applicants, however, argued that the Convention is a living instrument and, as established in the case law of the Court, 39 should be interpreted to present-day conditions. The Court nevertheless decided not to side with the applicants and opted to interpret marriage as in the 1950's; mind you, in a decision delivered 60 years after the Convention's adoption. It furthermore held that, at present, there was no consensus in Europe on same-sex marriage (only six European countries had recognized same-sex marriage thus far). 40 The Court went on to emphasize that the situation differed from that of Goodwin, because that concerned the marriage of persons who are of different gender, openly admitting to gender discriminating same-sex couples (alongside the respondent government), yet not doing anything with it. 41 Considering that Art. 9 of the EU Charter had in the meantime been adopted and which contained more gender-neutral wording, the Court considered that Art. 12 ECHR could in the future be interpreted not being limited to different-sex couples. 42 For the time being, it decided to refer to the member states and their competence to regulate the matter; Art. 12 ECHR was thus not violated by the exclusion of the possibility for same-sex couples to marry in Austria.
The decision in Schalk & Kopf was obviously met with mixed reactions. Same-sex marriage opponents were happy. Same-sex proponents were stupefied by the reasoning. Two points were important in this matter. First, at the time the applicants lodged an application, they could not enter into a registered partnership or a marriage as this possibility did not exist for them. Yet, the Court still declined to examine whether the lack of legal recognition would constitute a violation of Art. 14 ECHR in conjunction with Art. 8 ECHR on the ground that entering into a registered partnership was now possible by the applicants. 43 Second, because Austria did not provide any justifications as to why there was a differential treatment of same-sex couples on the basis of sexual orientation in comparison to different-sex couples in relevant similar situations, the Court should not have accepted Austria's reliance on its margin of appreciation. 44 This scope is only opened after a justification is provided by a state.
Though the reasoning in Schalk & Kopf was flawed, what the Court had done, is laid down a framework on how the concept of 'marriage' is supposed to be interpreted in the case of same-sex couples. Ever since, it has referred back to this framework in subsequent cases on equal marriage rights. Where the Court could not provide samesex couples the right to marry under Art. 12 ECHR, it decided to double down on the need for them to obtain some form of legal recognition that would provide similar 38  protection. We see the reference to Schalk & Kopf come back in Vallianatos, 45 a case on a Greek law that excluded same-sex couples from entering into civil unions. The Court labelled this practice discriminatory and as already established in Schalk & Kopf, stressed that same-sex couples also had the need for legal recognition of their relationship. 46 In addition, Greece had provided no compelling or weighty reasons to justify the differential treatment. The Court therefore established that Greece had violated Art. 14 ECHR in conjunction with Art. 8 ECHR by not offering same-sex couples the possibility to conclude a civil union. In Hämäläinen, on a Finnish law that required marriages of trans individuals to be transformed into registered partnerships if the trans individual wanted their new gender officially registered in governmental documents, the Court repeated its views in Schalk and Kopf and added that when there is no consensus on a matter that raises sensitive ethical or moral issues, the breadth of the margin of appreciation for states is considered to be wide. 47 The Court concluded that there is no obligation for states to allow same-sex couples the possibility to marry. 48 A year later, the Court delivered its decision in Oliari, 49 on Italy's lack of legal recognition of same-sex relationships. 50 A month before, the United States Supreme Court (SCOTUS) had delivered its ground-breaking decision in Obergefell, instantly legalizing same-sex marriage in all fifty US states. 51 The ECtHR found the decision by its American counterpart to be of interest to the Oliari case as well. In contrast to its own decisions earlier, the Court found that there was an emerging consensus in Europe and elsewhere in the legal recognition of same-sex relationships, a 'continuing international trend' as it were, that it suddenly could not ignore anymore. 52 In addition, the fact that some of the highest judicial courts in the country had called for legal recognition of same-sex relationships and that official surveys showed high amounts of acceptance of same-sex relations by the Italian population, weighed heavy for the Court. 53 Nevertheless, the ECtHR still held that Art. 12 ECHR creates no obligation to open up marriage to same-sex couples. It does however find that because the Italian government did not provide any form of legal recognition for same-sex relationships, it overstepped its margin of appreciation. Accordingly, Art. 8 ECHR is violated and Italy is obliged to offer some form of legal recognition to samesex couples. 54 As a result, Italy legalizes civil unions for same-sex couples in 2016. In that same year, the Court reiterates its views of Schalk and Kopf, Hämäläinen and Oliari on the inapplicability of Art. 12 53 Id., paras. 180-181. 54 The Court decides not to look into the violation of Art. 14 in conjunction with Art. 8 ECHR, see para.

188.
Charpentier 55 and states that there are no reasons to conclude differently, considering little time has passed between the previous judgments and the present case. 56

The third stage of development; colouring outside the boxes?
The equal marriage rights case law of the Court thereafter seems to indicate the development of a third stage or phase with cases such as Pajić, 57 Taddeucci and McCall, 58 Orlandi, 59 and Fedetova. 60 Pajić concerned the Croatian refusal of a residence permit on the grounds of family reunification with her same-sex partner. The Court explained that gender identification, sexual orientation and sexual life fell within the scope of private life as understood by Art. 8 ECHR. It had long indicated that same-sex relationships did not fall under 'family life', but that a rapid evolution of social attitudes towards samesex couples has taken place in many member states. The relationship of a cohabiting same-sex couple living in a stable de facto partnership is now considered to fall within the notion of family life. 61 The Court repeats its views in Karner that differential treatment on the basis of sexual orientation warrants particularly convincing and weighty reasons and that the margin of appreciation for the state here is narrow. 62 By reserving residence permits on the grounds of family reunification to different-sex couples, the state allowed differential treatment on the basis of sexual orientation 63 and offered no justifications. This resulted in a violation of Art. 14 ECHR in conjunction with Art. 8 ECHR. Taddeucci and McCall also concerned a refusal of a residence permit on grounds of family reasons. Here the Court established that the unmarried same-sex couple was in a different situation than unmarried different-sex couples (because the former had no form of legal recognition of the relationship, while the latter had the opportunity to get married but didn't), but was treated similarly as regards the refusal. 64 This similar treatment was in violation of Art. 8 ECHR and of Art. 14 ECHR in conjunction with Art. 8 ECHR. The Orlandi case was on the rejection of the registration of a legally concluded same-sex marriage in a different member state. Since civil unions were legalised after Oliari in 2016, the case concerned the impossibility of registering foreign concluded same-sex marriages in Italy before this time. The Court's conclusion in Orlandi was that this lacuna without a proper justification put forward violated Art. 8 ECHR. The Fedetova case partly resembled the line of reasoning in Schalk and Kopf, Hämäläinen, Oliari and Chapin and Charpentier, yet partly diverged due to the emphasis of the Court on the striking of a balance between the social reality of the same-sex applicants on the one hand (the interests of the individuals), and Russian law and society that did not offer any form of legal recognition of their relationships on the other hand (the interests of the public). 65 In essence, The Court also diverged from the Oliari case by not accepting the Russian argument of the public disapproval of LGBTQ+ individuals and same-sex couples in public surveys; 66 the Court emphasizes that there is a difference between when such data is used to enlarge the scope of the Convention in comparison when it is used to deny fundamental rights. Because there is no valid justification put forward for not legally recognizing the same-sex relationships in the case at hand, there was no fair balance struck between the aforementioned interest. Accordingly, Art. 8 ECHR has been violated. Roughly seven months after, Russia decided to leave the CoE before it was expelled over its invasion in Ukraine in February of 2022.
At present at the beginning of 2023, there are currently 19 members of CoE that have legalized same-sex marriage. It will be interesting to see what will happen with the Court's European consensus and margin of appreciation-reasoning when the next equal marriage rights cases invoking Art. 8 ECHR, 12 ECHR and 14 ECHR take place after the 24 th member opens civil marriage up to same-sex couples.

The case law of the CJEU
The CJEU has historically always been considered to being a market 'integration' court more than a human rights court, because of its focus on furthering the EU's goals of economic integration between its member states. 67 The role of the Court has been to overlook the observance of EU law in the interpretation and application of the Treaties. 68 As the EU has evolved throughout the years with more member states joining and its competences changing with each Treaty amendment, or the adoption of secondary legislation which provide further clarity on the decision-making processes, the Court has evolved along in its reasoning and provided its insights also on fundamental rights of its citizens. The development of the equal marriage rights case law before the CJEU can therefore be considered to being more dynamic than that of the ECtHR, due to the changing nature of the EU and EU law.

The first stage of development; incomparability
Similar to the ECtHR, the initial case law of the CJEU in the field of LGBTQ+ rights was dreadful. 69 Prime examples are the Grant 70 and D and Sweden 71 cases. Grant concerned an employee of South West Trains that was denied travel concessions for her same-sex partner on the basis that unmarried partners were only eligible for such funds if they were of the different sex. The Southampton Industrial Tribunal asked the Court of Justice (Court) for a preliminary reference on whether Grant was discriminated on the basis of sex, considering sexual orientation was not a protected ground in EU law. The Court answered negative, holding that the grant application was open to both men and women and therefore did not constitute discrimination on the basis of sex prohibited by Art. 119 of the EC Treaty (on equal pay for male and female workers) 72 or Council Directive 75/117/EEC (on the approximation of the laws of the member states relating to the principle of equal pay). 73 The fact that the Human Rights Committee had already established in Toonen v. Australia that under Art. 26 of the International Covenant on Civil and Political Rights (ICCPR), 74 'sex' is to be understood as including 'sexual orientation', did not sway the Court to decide otherwise. 75 D and Sweden concerned an employee of the Council of the European Union (Council) that had requested a household allowance on the basis of the relevant Staff Regulations for his same-sex partner with whom he was in a registered partnership with. The Council rejected his application on the basis that a registered partnership was not equivalent to a marriage. In the case before the Court, it affirmed that it considered marriage a union between persons of the different sex. 76 It furthermore found that D's situation as regards a household allowance was not comparable to those that were married as a registered partnership is assimilated in certain member states. 77 Up until then, the Court's line of reasoning was similar to that of the ECtHR.

The second stage of development; work for your rights
In 1997, the Treaty of Amsterdam 78 is adopted; it enters into force in 1999. Art. 13 Treaty on the European Union (TEC) 79 allowed the adoption of anti-discrimination legislation. It was on this basis that in 2000 the 'Employment Equality Framework Directive' (Framework Directive) 80 was enacted, changing the framework against which some of the cases brought before the Court were to be assessed. Though the Directive was limited to the field of employment and occupation, it lead to a string of equal marriage rights cases in which the CJEU found same-sex couples considered to being comparable to different-sex couples not only in their need for protection, but also for certain employment benefits and rights. 81 We see this for instance in the Maruko 82 case, which was on a refusal of a widower's pension for a surviving same-sex life partner. This refusal came after the German legislature had placed life partnership and marriage on an equal footing, by amending the Social Security Code. The Court found that the Framework Directive does not allow a member state to exclude life partners from survivor's benefits equivalent to those granted to surviving spouses, even though national law places both groups in a comparable situation so far as concerns that survivor's benefit. 83 In Römer, 84 the Court added that the situations of the two groups (same-sex couples and different-sex couples) do not have to be identical, but they need to be legally and factually comparable in order to fall under the scope of the Framework Directive and be assessed as direct discriminatory. 85 The analysis focuses on the rights and obligations of the two groups as they result from the applicable domestic provisions. Römer concerned the denial of a supplementary retirement pension to a same-sex couple in a registered partnership due to it being reserved exclusively for different-sex married couples. In Hay, 86 the Court confirmed that a collective agreement may not treat same-sex couples in a 'PACS' 87 as regards days of special leave and salary bonuses for marriage, differently than those that are married. 88 The same was the case in Dittrich and others 89 with request for assistance for medical expenses incurred by the civil partners of former public servants; these also fell under the scope of the Framework Directive. In W . v. Commission, 90 the EU Civil Service Tribunal decided in the same line as the aforementioned cases and those of the ECtHR that the rules of the Staff Regulations endowing household allowances to officials registered as stable, non-marital partners, including those that are of the same-sex, must be interpreted in such a way as to make those rules as effective as possible, so that the right is not theoretical or illusory, but practical and effective. 91 All of these cases demonstrate that the keyword here is 'legal recognition', because without this, the Court finds there is no comparability between same-sex couples and different-sex couples. The Parris 92 case is a prime example of this. Parris had requested his employer that, on his death, his same-sex civil partner would receive a survivor's pension. This was denied on the ground that he had not entered into a civil partnership before his 60 th birthday, even though this possibility did not exist until after his 60 th birthday. The CJEU was asked to assess whether this denial amounted to discrimination on grounds of sexual orientation. The Court answered negative, holding that the distinction is made on the basis of age; 93 Parris' inability to obtain legal recognition of his same-sex relationship did not amount to discrimination on the basis of sexual orientation. 94

The third stage of development; movement rights and mutual recognition?
In 2004, the EU adopts the 'Citizenship Rights Directive' (CRD), 95 providing EU citizens with free movement rights for themselves and their family members, irrespective of their sexuality. A few years later in 2009, with the entering into force of the Treaty of Lisbon, 96 the EU Charter becomes binding for the EU and the member states when they implement EU law. 97 Furthermore, the mainstreaming provision of Art. 10 TFEU now required the EU institutions to work towards eliminating discrimination with sexual orientation being one of the grounds mentioned in it. These developments raised the standards in LGBTQ+ rights protection in the EU. Around the same time, Adrian Coman, a Romanian national, married his American samesex partner in Brussels. The couple later moves to Romania and Coman applies for a residence permit for his husband on the basis of the CRD. This request is denied on the basis that Romania does not recognize same-sex marriages. The Romanian Constitutional Court asks the CJEU a preliminary question on the interpretation of 'spouse' in Art. 2(2)(a) CRD and whether this includes a person of the same-sex. The Court starts its analysis in Coman 98 by immediately providing clarity: the term 'spouse' within the meaning of the CRD is gender-neutral and therefore covers the same-sex spouse of the Union citizen concerned; 99 an interpretation in line with Art. 9 EU Charter which contains the right to marry and is also worded in gender-neutral terms. The Court further clarifies that it cannot be left to member states to refuse or allow entry on the basis of whether they recognize same-sex marriage themselves. This would hamper with the right to move and reside freely as established by Article 21(1) TFEU. 100 The CJEU further emphasizes that in accordance with Art. 52 (3) 99 Id., para. 35. 100 Id., paras. 39-40. the same meaning and scope as guaranteed by Art. 8 ECHR. The Court goes on to explain that refusing the recognition of legally concluded same-sex marriages in other member states could also not be justified on grounds of public policy and national identity, as this requires a genuine and sufficiently serious threat to a fundamental interest of society. According to the Court, recognizing foreign concluded same-sex marriages does not undermine the national identity or pose a threat to the public policy of the Member State concerned. 101 Accordingly, a third-country spouse of an EU citizen has a derived right of staying longer than three months in the member state of the nationality of the citizen they are married to and this right may not be made subject to stricter conditions than those laid down in Art. 7 CRD.
The decision of the CJEU in Coman is received by the LGBTQ+ community as ground-breaking. 102 It not only clarified that the CRD is also applicable to same-sex spouses when they make use of their movement rights, but it also made it clear that invoking public policy and national identity justifications would not be accepted by the Court if they are not backed up with substantial arguments and a proportionate application. Coman subsequently initiated the third stage in the development of the equal marriage case law of the EU as it introduced the mutual recognition 103 of legally concluded same-sex marriages in other member states. With Coman, the CJEU brought its case law in line with that of the ECtHR in Orlandi, delivered roughly eight months earlier. 104 4 Conclusion and outlook to the future same-sex couples, courts are urged to continue applying strict scrutiny to the behavior of the member states and request them to provide weighty reasons to justify any discriminatory treatment on the basis of sexual orientation.

Declarations
Competing Interests The author declares no competing interest.
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