European Court of Human Rights: Gay couples have no right to marry

by on June 26, 2010  •  In Marriage

In Schalk and Kopf v Austria, the European Court of Human Rights ruled that the 47 member states of the European Council are under no obligation to grant same-sex couples access to marriage.

Austrian couple Horst Schalk and Johan Kopf challenged the exclusion of same-sex marriage in Austrian law, invoking article 12 of the European human rights code (right to marry) as well as under articles 14 (prohibition of discrimination) and 8 (right to private family life) in concurrence. By a 4-3 vote, the court deemed the denial of marriage rights to not be in violation of human rights.

Despite concluding that it would no longer consider marriage being limited to two people of the opposite sex, the court ruled that individual states have the authority to decide the scope of the right to marry. The decision by the seven nations that have chosen to offer same-sex marriage (Belgium, Iceland, the Netherlands, Norway, Portugal, Spain, and Sweden) came from “their own vision of the role of marriage in their societies, and [it] did not flow from an interpretation of the fundamental right as laid down by the contracting states in the Convention in 1950.”

Following are the comments of Professor Robert Wintemute of Kings College School of Law, University of London:

The most important part of the Court's judgment, for same-sex couples in Europe and around the world, is its finding that Article 14 was applicable in combination with the "respect for family life" branch of Article 8.  From 1983 to 1996, the European Commission of Human Rights consistently stated that a same-sex couple enjoys "private life" but not "family life", unlike an unmarried different-sex couple.  In 2001, the Court repeated this statement in its decision declaring the application in Mata Estevez v. Spain inadmissible.  Since then, opponents of equality for same-sex couples have cited Mata Estevez as excluding same-sex couples from "family life" under Article 8.  ILGA-Europe, the FIDH (Federation Internationale des Ligues des Droits de l'Homme), the International Commission of Jurists, and the AIRE Centre (Advice on Individual Rights in Europe), in their joint written comments, asked the Court to reconsider the statement in Mata Estevez and expressly overrule it.  The Court decided to do so:  "The Court notes that since 2001 … a rapid evolution of social attitudes towards same-sex couples has taken place in many member States. Since then a considerable number of member States have afforded legal recognition to same-sex couples … Certain provisions of EU law also reflect a growing tendency to include same-sex couples in the notion of 'family' …  In view of this evolution the Court considers it artificial to maintain the view that, in contrast to a different-sex couple, a same-sex couple cannot enjoy 'family life' for the purposes of Article 8. Consequently the relationship of the applicants, a cohabiting 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."  [paras. 93-94] 
…The Schalk & Kopf judgment recognises for the first time that same-sex couples enjoy "family life", and leaves open the possibility that the absence of any form of registered partnership law for same-sex couples could violate the Convention.  Pending and future applications by same-sex couples will allow the Court to address this issue.

There is a possibility that Schalk and Kopf may appeal to the ECHR’s Grand Chamber.

UPDATE: The Grand Chamber rejected the referral request submitted by plaintiffs on November 22, making the June decision final.


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