EU Member States have no obligation to recognise homosexual relationships or "marriage"

Published: June 25th, 2010

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- Sexual Orientation

The European Court of Human Rights (ECHR) has affirmed that there is no right to marriage for homosexuals under the European Convention of Human Rights.

From the European Center for Law and Justice:

The ECLJ Welcomes the ECHR decision affirming that Member States have no obligation to recognize homosexual relationships or “marriage”

June 24, 2010

(Strasbourg, France)

In a case closely followed by the ECLJ, the Schalk and Kopf v. Austria case (n°. 30141/04) the European Court of Human Rights (ECHR) has affirmed that there is no right to marriage for homosexuals under the European Convention of Human Rights. The Court further affirmed that the Austrian government had not discriminated against the “couple” by not allowing two men to contract a marriage.

This case was brought before the ECHR in conjunction with two recommendations of the Council of Europe against “Discrimination on the Basis of Gender Identity and Sexual Orientation”: one Resolution of the Parliamentary Assembly to the Council of Europe (Gross resolution 1728-2010 voted on April 29) and a Recommendation CM/Rec (2010)5 adopted on 31 March 2010.

This decision confirms the analysis argued by the ECLJ before the European Court and within the Council of Europe, and stalls, for the moment, the efforts of the homosexual lobby at the Council of Europe. For this lobby, this decision was supposed to be the achievement of a very well organized strategy in order to get from. the Court of Strasbourg the legal recognition of “same-sex union” as a Human Right guaranteed by the European Convention as part of the right to “family life” (art. 8). The “Gay rights” lobby was headed by European Region of the International Lesbian and Gay Association (ILGA-Europe) and composed of the Fédération Internationale des ligues des Droits de l'Homme, the International Commission of Jurists (ICJ), and the “Advice on Individual Rights in Europe” (AIRE Centre). All these NGOs, have together submitted a very detailed memorandum explaining that “National courts need guidance on this question”, in other words, explaining that European Nations should be forced to accept same-sex marriage in the name of LGBT ideology.

This coalition of NGOs was represented before the Court by Prof. Robert Wintemute, from King's College (London). This same professor has also been involved and influential in the drafting of the Committee of Ministers Recommendation. In addition to their written comments, these NGOs had the privilege to submit oral comments before the Court during the hearing that took place on February 25, 2010.

At the opposite, unfortunately, a number of other NGOs, opposed to same-sex marriage, have been denied the right to participate in that particular case.

The ECLJ has intensively worked on it and on the whole issue. The ECLJ has provided a very detailed memorandum and amendments, and took part to the Committee of Experts of the Council of Europe in charge of drafting the Recommendation CM/Rec (2010)5 of the Committee of Ministers on measures to combat discrimination on grounds of sexual orientation or gender identity.

Gregor Puppinck, Director of the ECLJ says, “We take this case as a victory of our long standing efforts. The states cannot be bound to accept new obligations that are not in the Convention and moreover are contrary to the Convention.”

In the decision delivered today, the Court confirmed the validity of all the arugments developed by the developed the ECLJ

The case was brought to the ECHR in 2004 by two men, Horst Michael Schalk and Johann Franz Kopf, who attempted to contract a civil marriage in 2002 but were not permitted to do so. Their appeal was denied by the Municipal Office and also by the Regional Governor. A final appeal was taken by the Constitutional Court, who upheld the lower decisions, finding that “marriage could only be contracted between two persons of opposite sex.” The two men complained “in particular that the legal impossibility for them to get married constituted a violation of their right to respect for private and family life and of the principle of non-discrimination.” The Constitutional Court dismissed their complaint because it held “that neither the Austrian Constitution nor the European Convention on Human Rights required that the concept of marriage, as being geared to the possibility of parenthood, should be extended to relationships of a different kind and that the protection of same-sex relationships under the Convention did not give rise to an obligation to change the law of marriage,” according to the press release issued by the Court today.

This led to a final judgment at the ECHR.

The ECHR held that Article 12 of the European Convention, which guarantees “men and women” the right to marry, does not impose an obligation on Member States to provide same-sex couples the right to marry. In analyzing whether a right to “same-sex” marriage existed, the Court made a reference to the Charter of Fundamental Rights of the European Union, a treaty which binds only 27 of the Member States, leaving the other 20 (Eastern European countries) completely unconcerned with its application. It is likely the Court invoked the Charter because the applicable provision does not explicitly include the phrase “men and women”, as does the Convention, allowing the Court to infer a “right” to “same-sex marriage” under the Charter. Despite this incorrect invocation of the Charter, the Court noted that Member States were still in the best position to govern this issue, based on the needs of their respective societies as well as cultural issues unique to each State. Thus, the Court correctly found that Article 12 does not include a right to “same-sex marriage”.

The Court next examined Article 8, which governs the issues of “private life” and “family life.” Based on a pretended “emerging consensus” of societal attitudes towards same-sex couples, the Court found that a stable homosexual couple could fall within the notion of “family life.” This pretended “emerging consensus” founded by the Court is highly doubtful since, as the Court recognize it, the majority of the Member States do not grant any status to “same-sex couples”.

However, because the Convention’s Articles must be read in conjunction and not in isolation, and Article 12 did not include an obligation on the part of Member States to provide access to marriage for same-sex couples, Article 8, in conjunction with Article 12, could not be interpreted as including a right to “same-sex marriage”.

The homosexual couple then argued that because Austria had provided for legal recognition of same-sex relationships in its Registered Partnership Act (RPA), refusing homosexuals access to marriage amounted to discrimination. The Court first noted that despite the emerging consensus towards legal recognition of same-sex relationships, a majority of States still had not given any legal recognition to homosexual relationships. Therefore, under the Convention, there is no current obligation for Member States to provide legal recognition to same-sex couples, such as a RPA. The Court further held that even when a Member State provides such recognition, as Austria had done, there is no obligation to provide recognition on the same level as marriage. Thus, Austria was permitted to deny same-sex couples the ability to adopt a child, for example.

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EU Member States have no obligation to recognise homosexual relationships or "marriage"