The European court's hidden but hopeful message on same-sex marriage

29 Jun 2010

The right to marry remains subject primarily to national and not European law, but an Austrian couple have nudged the Council of Europe's 47 states closer to a consensus

By Clive Baldwin

Last week, the European court of human rights ruled unanimously that there was no obligation on states to recognise same-sex marriage. At least, not yet. Because hidden within the ruling are two significant findings that make it almost certain that one day the court will rule in favour of a right to have same-sex relationships - including marriages - recognised in law. The case is also notable for a bizarre intervention by the UK government, arguing against a right - to recognition of civil partnerships - that it had itself introduced at home.

Two Austrians, a Mr Schalk and a Mr Kopf, argued that the right to marry, set out in the European convention on human rights, requires states to recognise same-sex marriage. The court rejected that argument unanimously, stating instead that the right of men and women to marry is subject to national laws. The court relied on the fact that only six of the 47 European states recognise same-sex marriage (in fact, seven countries now do, with Iceland the latest). In this approach the court showed once more that on issues it calls "morality" it normally follows states, rather than leads them, an approach which those who accuse the court of "interfering" too much would do well to consider.

However, the court did state clearly that the right to marry does not apply only to persons of the opposite sex. The EU charter of fundamental rights - accepted by all EU states -- guarantees the right to marry, deliberately excluding any reference to gender. This should mean that in those countries that grant access to marriage for all couples, any distinction between same-sex and heterosexual marriage would be arguable discrimination under the convention.

But for now the court has held back, hinting strongly that it will recognise the right to same-sex marriage, as a right under the convention, when a "European consensus" exists - ie, when enough states have done so.

But Schalk and Kopf made a further argument - one that divided the court by four votes to three. They argued they had been discriminated against by Austria in their right to family life, being denied the right to any legal recognition of their relationship. In January this year Austria introduced civil partnerships (well after the case was first brought) and as a result, the majority of the court said that in fact they were not suffering discrimination, as they did now have the right to a civil partnership. Nor had the two men shown that the differences between a civil partnership and marriage in Austria (which are mainly about parental rights) would affect them.

But the court did for the first time recognise that a same-sex couple in a stable relationship constitutes "family life" in the same way that a heterosexual couple does. The three dissenting judges argued strongly that there was discrimination, in that Austria gave no legal recognition to same-sex relationships before 2010 and gave no arguments about why it would treat people differently on the grounds of their sexual orientation.

All of the other 46 states of the Council of Europe could have chosen to intervene in this case. Only one did - the United Kingdom. The court's judgment summarises the UK's arguments as being strongly against any right to same-sex marriage or to recognition of same-sex partnerships. This intervention is very peculiar, to say the least, as it was done under the previous Labour government, which was very proud of introducing legal recognition of civil partnerships in Britain. In fact, after this intervention was publicised in the Guardian in 2008 and Anthony Lester raised the issue in the Lords, the government said it was amending its arguments, but it does not appear to have done so with any major change of approach.

In fact, when it comes to intervening at the European court of human rights to weaken human rights protection, the UK has form. In a 2008 case against Italy it was again the sole intervener, this time trying to water down the absolute ban on deportations where there is a real risk of torture. Its arguments in that case were resoundingly rejected by the court, and its intervention was later criticised by a parliamentary committee.

Although the implications of this case for gay marriage are disappointing to Schalk and Kopf, they have achieved a clear precedent for the future. In recognising that the right to family life and the right to marry are applicable to same-sex relationships, the court has effectively said it will declare it a duty for states to recognise such rights, once enough states have done so.

The new British government has already published a policy paper saying that the UK is a "world leader" on lesbian, gay, bisexual and transgender rights, and wants to discuss taking civil partnerships to the "next stage". Hopefully, if last week's ruling is appealed to the grand chamber of the European court, the government will not intervene again against equality. Instead it should put Britain at the forefront of the growing European consensus by introducing recognition of same-sex marriage.

Clive Baldwin is a senior legal adviser at Human Rights Watch.

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