Same-sex marriage has in many ways become the debate of our time, as it is so widely discussed, debated and every now and then legislated upon in different States. It has mobilised a huge variety of gay rights and civil society activists, religious groups and politicians for or against. As examples from a number of mainly Western and often European States demonstrate, it is no longer situated in the imaginary realm of utopian legal debate, but it has become law in various parts of the world. But regardless of these advancements, sexual minorities are a group that is very much unprotected by the international human rights regime, and this is very much how the situation remains in the 2010s on a global level. Some basic guidelines on how to apply international law to the protection of LGBT persons have been articulated in the Yogyakarta Principles from 200792 (see O’Flaherty and Fisher 2008), but there are no legally binding provisions in human rights conventions of the United Nations concerning sexual orientation and gender identity. In many parts of Europe and North America, sexual minorities are to a great extent deemed worthy of protection. While the Council of Europe and the European Court of Human Rights have taken some very important steps in recent decades regarding the protection of sexual minorities, the European regional human rights system, too, remains relatively conservative vis-à-vis the rights of non-heterosexual persons. In the United Nations system protection is even weaker: despite the decision of Toonen v. Australia93 in 1992, where the existence of anti-sodomy laws was deemed discriminatory and discrimination on the basis of sexual orientation was classified as sex discrimination, the
92 See the Yogyakarta principles at http://www.yogyakartaprinciples.org/principles_en.htm.
Accessed 15 November 2015.
93Toonen v. Australia, Communication 488/1992, UN Document CCPR/C/50/D/488/1992.
United Nations machinery is still reluctant to consider sexual orientation as a human rights issue due to the fierce opposition of some States.
The history of dyadic sexual relations between adults of the same sex in the European Court of Human Rights is a long and arduous one, even though important steps have been taken from time to time. Before 2010 and the judgement ofSchalk and Kopf v. Austria given in that year94 there was no case law articulating whether there is a right to marry or the right to form recognised civil unions for same-sex couples under the European Convention.
The judgement did not find support in the European Convention to the idea that the right to contract same-sex marriage is a human right. However, there have been various decisions and judgements that dealt with recognising same-sex cohabitation, and often these fell in the categories of housing or social and health insurance.Schalk and Kopf v. Austria from 2010 is the most substantial case so far to dwell on the prospect of same-sex marriage to be covered by the European Convention. Since the judgement was published, it has been subject to a number of analyses which highlight different aspects of it. In essence, the judgement recognised that same-sex couples sharede facto family life, not just mere private life. In this sense, the judgement was first in its kind. However, the actual outcome of the case was that Article 12 of the European Convention could not be read to guarantee a right to marry for same-sex couples. In a way, in the light of Schalk and Kopf, same-sex marriage is a political and legal
‘luxury’ that may be offered by a State if the national legislator so happens to decide. Of course it is possible that European consensus builds up on the issue and same-sex marriage will become so widely legislated in Member States of the Council of Europe that eventually the European Court will interpret Article 12 in favour of it. However, the wording of Article 12 (above) is not exactly very promising, as the right to marry is relegated almost entirely to “the laws governing the exercise of this right”.
The case concerned a same-sex couple who judicially challenged the inability to contract a marriage. Schalk and Kopf were a male couple in their forties living in Vienna. In 2002, they contacted their local Office for Matters of Personal Status95 and asked the officials to open a process for obtaining the possibility to marry. The Vienna Municipal Office replied the same year and told the applicants that they could not marry because they were of the same sex, and the Austrian Civil Code stipulated that marriage partners must be two persons the opposite sex. The second instance where Schalk and Kopf complained to, the Vienna Regional Governor, stood by the view of the Municipal Office and stated that the Article 12 of the European Convention proclaimed the right to marry to apply to an opposite-sex couple.96 The applicants proceeded to a constitutional complaint, evoking the right to
94Schalk and Kopf v. Austria, no. 30141/04, ECHR 2010.
95Schalk and Kopf v. Austria, para 8.
96Schalk and Kopf v. Austria, para 10.
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respect for private and family life and the principle of non-discrimination.
Schalk and Kopf argued that
… the notion of marriage had evolved since the entry into force of the [Austrian] Civil Code in 1812. In particular, the procreation and education of children no longer formed an integral part of marriage.
According to present-day perceptions, marriage was rather a permanent union encompassing all aspects of life. There was no objective justification for excluding same-sex couples from concluding marriage, all the more so since the European Court of Human Rights had acknowledged that differences based on sexual orientation required particularly weighty reasons by way of justification.
Schalk and Kopf v. Austria, para 11
In 2002, the applicants complained of the fact that in Austria at the time, there was no civil partnership legislation nor same-sex marriage. The law on registered partnerships was passed in 2009 and came into effect in 2010, the same year the ECHR judgement was given. In the European Court, the applicants evoked Article 12 and Article 14 taken in conjunction with Article 8.
The European Court deemed these complaints admissible but found no violation or either Article.
What is important is that despite the outcome of the judgement, same-sex couples were seen to share family life in contrast to earlier case law according to which they shared only private life. The European Court noted that “rapid evolution of social attitudes towards same-sex couples has taken place in many member States”97 and that “[c]ertain provisions of European Union law also reflect a growing tendency to include same-sex couples in the notion of
“family””98. It proceeded to argue that
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 stablede facto partnership, falls within the notion of “family life”, just as the relationship of a different-sex couple in the same situation would.
Schalk and Kopf v. Austria, paras 93-94
In contrast toSchalk and Kopf, the Grand Chamber judgement ofBurden v. the United Kingdom99 from 2008 deserves to be discussed in conjunction with the question of same-sex marriage, or rather regarding what is not
97Schalk and Kopf v. Austria, para 93.
98Schalk and Kopf v. Austria, para 93.
99Burden v. the United Kingdom[GC], no. 13378/05, ECHR 2008.
deemed as analogous with same-sex partnerships. In this case, two elderly sisters living together complained that they should have been able to contract a civil partnership or to receive similar tax exemptions and benefits. Even though the case does not, as such, deal with the distinction between private and family life or discrimination thereof, the issue of limiting marriage-like partnerships to sexual relationships is a question that deserves discussion. The sisters, born in 1918 and 1925, lived together in a house they had inherited from their parents. According to the case material, they “lived together, in a stable, committed and mutually supportive relationship, all their lives”100 of which over thirty years in the house they owned together. They complained of the fact that one of them would be subject to a higher degree of inheritance tax compared to if they were a married couple (wife and husband) or a same-sex couple in a civil partnership. In the United Kingdom, property that is passed from one spouse to another is exempt of inheritance tax. From December 2005 onwards, parties to civil partnerships have been seen as spouses for the purposes of inheritance taxation.101
What made this case peculiar was also that in Britain the threshold for inheritance tax is very high compared to many other European States – GBP 300,000 at the time of the Burden case being heard in Strasbourg – so the situation of sisters Burden represented the plight of a thin slice of society who are already well off. In the end the Grand Chamber came to the conclusion that there had been no violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 1 of Protocol 1 (peaceful enjoyment of one’s possessions). However, the case did provide an ample opportunity for the European Court and its Grand Chamber to dwell on the object and purpose of marriage, civil partnerships (as they are called in Britain) and the demarcation of relations involving intimate, sexual relations and kin relations.
Undoubtedly, “stable, committed and mutually supportive relations” may exist between a plethora of different categories of persons such as parents and children, siblings, friends and so on. One might well argue what have sex, romantic love or prohibited degrees of relationships have got to do with
“stable, committed and mutually supportive relations”. However, civil partnerships and equivalent arrangements were created for the sake of claims for equality between heterosexual and non-heterosexual couples, and they stay within the logic of this framework.
On the basis of the argumentation of the Grand Chamber, it seems that placing informal unions of siblings on a par with marriage and civil partnerships would have been an uncomfortable step for the European Court, as then it would have placed ‘unions of blood’ in an analogous position with marriage, the original blueprint, albeit by proxy. From the outset, it seems extraordinary that the Burdens decided to make their claim for eased inheritance taxations in terms of an analogy to civil partnerships. Obviously,
100Burden v. the United Kingdom, para 10.
101Burden v. the United Kingdom, para 15.
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English inheritance taxation places marriage, and from 2005, civil partnership, as privileged relations, and this can be criticised from a variety of positions (see e.g. Barker 2006). However, taxation rules constitute an altogether different issue that deals with the distribution of goods between heirs and society at large. Categories of close relationships that qualify for tax exemptions, e.g., in inheritance issues are rules open to manipulation distinct to the larger framework of marriage and civil unions, and, if an analogy to prohibited degrees of relationships and incest prohibitions is allowed, lie within the society in question to be changed.102
In the judgements ofVallianatos and others v. Greece from 2013103, the issue at stake was whether the Greek Government had discriminated against same-sex couples when enacting a law allowing civil unions for opposite-sex couples, a kind of a lighter form of marriage. The complaint was brought to the European Court not just by one or two individuals but in the name of eight different individuals under two different complaints, both of which were supported by non-governmental organisations. The structure of the complaint was that “relying on Article 8 taken in conjunction with Article 14, that the fact that the ‘civil unions’ introduced by Law no. 3719/2008 were designed only for couples composed of different-sex adults had infringed their right to respect for their private and family life and amounted to unjustified discrimination between different-sex and same-sex couples, to the detriment of the latter”104. The arguments given by the Greek Government for creating this kind of a new form of partnerships105 are particularly interesting. The aim of the law on civil partnerships, it appears, was not really to given more a wider variety of options for opposite-sex couples to lead the kind of life and enter into the kinds of unions they chose, but to regulate reproduction outside marriage, as children born to cohabiting or officially single women were often left without the parental protection of the father:
…the legislation on civil unions should be viewed as a set of provisions allowing parents to raise their biological children in such a way that the father had an equitable share of parental responsibility without the couple being obliged to marry. Civil unions therefore meant that, when the woman became pregnant, the couple no longer had to marry out of fear that they would not otherwise have the legal relationship they desired with their child since he or she would be regarded as being born out of wedlock. Hence, by introducing civil unions the Greek legislature had shown itself to be both traditional and modern in its thinking… [T]he legislature had sought to strengthen the institutions of marriage and the family in the traditional sense, since the decision to marry would henceforth be taken irrespective of the prospect of
102 See Schneider (1984) for a succinct analysis ofNo Just Cause(Report by a Group… 1984).
103Vallianatos and others v. Greece [GC], no. 29381/09 and 32684/09, 7 November 2013.
104Vallianatos and others v. Greece [GC], para 3.
105 SeeVallianatos and others v. Greece [GC], para 10.
having a child and thus purely on the basis of a mutual commitment entered into by two individuals of different sex, free of outside constraints. …[T]he introduction of civil unions for same-sex couples would require a separate set of rules governing a situation which was analogous to, but not the same as, the situation of different-sex couples.
Vallianatos and others v. Greece, paras 62-63
However, the Grand Chamber of the European Court found by sixteen votes not one that there had been a violation of Article 14 taken in conjunction with Article 8: the applicants had been subject to discrimination on the basis of their sexual orientation as the Greek law on civil partnerships excluded same-sex couples. The European Court did not want to establish that there was a
‘European consensus’ on offering same-sex couples the possibility of a civil partnership, but pointed out that “a trend is currently emerging with regard to the introduction of forms of legal recognition of same-sex relationships”106, and that the Greek Government had not given reasons weighty enough to establish that enacting a legislative instrument separate from marriage that excluded same-sex couples would have been justified. The European Court noted that
The aim of protecting the family in the traditional sense is rather abstract and a broad variety of concrete measures may be used to implement it… Also, given that the Convention is a living instrument, to be interpreted in present-day conditions… the State, in its choice of means designed to protect the family and secure respect for family life as required by Article 8, must necessarily take into account developments in society and changes in the perception of social and civil-status issues and relationships, including the fact that there is not just one way or one choice when it comes to leading one’s family or private life[.]
Vallianatos and others v. Greece, para 84
The protection of same-sex sexual relationships has proceeded in the European Court through different phases, starting with attempts to decriminalise homosexual conduct and proceeding to discuss what constitutes as private life, family life and respect for the home, all under Article 8. ‘Respect for the home’ is important here, as some of the pivotal cases have concerned cohabiting same-sex couples where the surviving partner after the death of another has been unable to secure a lease.107
First attempts to challenge legislation criminalising homosexual activity came from the Federal Republic of Germany, attacking paragraph 175 of the
106Vallianatos and others v. Greece [GC], para 91.
107S. v. United Kingdom, no. 11716/85, Commission decision 26th August 1986 andKarner v.
Austria, no. 40016/98, ECHR 2003-IX.
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penal code of the Federal Republic of Germany. The European Commission of Human Rights, the screening body of the European Court that existed at the time, declared these complaints inadmissible (Grigolo 2001, Johnson 2013).
The principle of the decriminalisation of homosexuality was tackled in the judgement ofDudgeon v. the United Kingdom108, which became a landmark judgement in the European Court regarding the decriminalisation of homosexual activity. The case was brought to the ECHR by Jeffrey Dudgeon, an activist of the Northern Ireland Gay Rights Association in 1975. In 1981 the European Court delivered a judgement on the case and ruled that the anti-sodomy laws in Northern Ireland violated the right to ‘respect for private life’
under Article 8 of the Convention. By this time, other parts of the United Kingdom no longer had laws in place criminalising homosexual activities. In the cases of Norris v. Ireland from 1988109 and Modinos v. Cyprus from 1993110 the European Court delivered similar decisions, condemning the criminalisation still in place in the respondent States. Ireland and Cyprus changed their laws in 1993 and 1995 respectively.
However, inDudgeon the European Court was still of the opinion that a certain degree of control with respect to homosexuality was justifiable, which meant that different ages of consent for homosexual and heterosexual relations were allowed. Differences in age of consent were condemned in Sutherland v. the United Kingdomfrom 2001 in which the complaint to the European Court was made in 1994111. However, the complaint did not lead to a reasoned judgement per se as the case was struck off the list of pending cases due to legislative changes in the United Kingdom equalising age of consent in heterosexual and homosexual relations. The fact that homosexual relationships were seen as part of one’s private life, not family life, remained a constant dictum for about three decades. For example, in the decision of X.
and Y. against the United Kingdom112 where a British man, Y, and and a Malaysian man, X, tried to live together in the United Kingdom, but as X’s temporary residence permit was not renewed, they could not remain in the UK. The Commission found that “[d]espite the modern evolution of attitudes towards homosexuality… the applicants’ relationship does not fall within the scope of the right to respect for family life ensured by Article 8”113.
In the decision ofS(impson) v. the United Kingdom from 1986114, a British woman had filed a complaint against the order to be evicted from the dwelling she had been sharing with her female partner. Her partner had been the secure tenant of the lease, and after her death Simpson was to be evicted from the
108Dudgeon v. the United Kingdom, 22 October 1981, Series A no. 45.
109Norris v. Ireland, 26 October 1988, Series A no. 142.
110Modinos v. Cyprus, 22 April 1993, Series A no. 259.
110Modinos v. Cyprus, 22 April 1993, Series A no. 259.