A commentary and resource on Law and Sexuality by Professor Chris Ashford and guests
I would argue that the European Court of Human Rights has been a key player in the development of human rights in the UK. The decision by the Strasbourg court in Schalk and Kopf v. Austria (no. 30141/04) on same-sex marriage is a disappointing one. The court released a press release to accompany the decision of the court which is available here. Relying on Article 12, the applicants complained of the authorities’ refusal to allow them to contract marriage. Relying further on Article 14 in conjunction with Article 8 they complained that they were discriminated against on account of their sexual orientation since they were denied the right to marry and did not have any other possibility to have their relationship recognised by law before the entry into force of the Registered Partnership Act. Pink News reported the story here.
In respect of Article 12 (the right to marry) the Strasbourg Court found that Article 12 did not impose an obligation on the Austrian Government to grant a same-sex couple like the applicants access to marriage. It therefore unanimously held that there had been no violation of that Article.
Although this is the bit that’s got the media’s attention – it’s actually the 14 accompanied by 8 bit that’s a little more interesting – not least because the court was divided. It is worth reproducing that section of the press release in full:
The Court first addressed the issue whether the relationship of a same-sex couple like the applicants’ fell not only within the notion of “private life” but also constituted “family life” within the meaning of Article 8. Over the last decade, a rapid evolution of social attitudes towards same-sex couples had taken place in many member States and a considerable number of States had afforded them legal recognition. The Court therefore concluded that the relationship of the applicants, a cohabiting same-sex couple living in a stable partnership, fell within the notion of “family life”, just as the relationship of a different-sex couple in the same situation would.
The Court had repeatedly held that different treatment based on sexual orientation required particularly serious reasons by way of justification. It had to be assumed that same-sex couples were just as capable as different-sex couples of entering into stable committed relationships; they were consequently in a relevantly similar situation as regards their need for legal recognition of their relationship. However, given that the Convention was to be read as a whole, having regard to the conclusion reached that Article 12 did not impose an obligation on States to grant same-sex couples access to marriage, the Court was unable to share the applicants’ view that such an obligation could be derived from Article 14 taken in conjunction with Article 8.
Given that with the entry into force of the Registered Partnership Act in Austria it was open to the applicants to have their relationship formally recognised, it was not the Court’s task to establish whether the lack of any means of legal recognition for same-sex couples would constitute a violation of Article 14 taken in conjunction with Article 8 if this situation still persisted. It remained to be examined whether Austria should have provided the applicants with an alternative means of legal recognition of their partnership any earlier than it did. The Court observed that while there was an emerging European consensus towards legal recognition of same-sex couples, there was not yet a majority of States providing for it. The Austrian law reflected this evolution; though not in the vanguard, the Austrian legislator could not be reproached for not having introduced the Registered Partnership Act any earlier.
The Court was not convinced by the argument that if a State chose to provide same-sex couples with an alternative means of recognition, it was obliged to confer a status on them which corresponded to marriage in every respect. The fact that the Registered Partnership Act retained some substantial differences compared to marriage in respect of parental rights corresponded largely to the trend in other member States. Moreover, in the present case the Court did not have to examine every one of these differences in detail. As the applicants did not claim that they were directly affected by the remaining restrictions concerning parental rights, it would have gone beyond the scope of the case to establish whether these differences were justified.
In the light of these findings, the Court concluded, by four votes to three, that there had been no violation of Article 14 in conjunction with Article 8.
Judges Rozakis, Spielmann and Jebens expressed a dissenting opinion; Judges Kovler and Malinverni expressed a concurring opinion.