The European Court of Human Rights and Same-Sex Marriage. The Consensus Approach
Master thesis by PluriCourts research assistant Claire Poppelwell-Scevak. The thesis is available on SSRN.
Over the last fifteen years there has been a global movement to legalise same-sex marriage. Developments have been made in countries such as the United States of America (USA), South Africa, New Zealand and Colombia. However, the European Court of Human Rights (Court) – arguably the most progressive and active human rights court in the world – has not followed this movement and continues to deny the right to marry for homosexual couples. In light of the Court’s objective to protect and enforce human rights – it is perplexing to see the Court recognise equal legal status of same-sex couples to heterosexual couples, but then refraine from legalising same-sex marriage. This leads me to question why the Court has not interpreted the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention or ECHR) to include same-sex marriage?
For over half a century, the Court has engaged in a range of human rights through its implementation of the Convention in its member states (states). However, this engagement has yet to secure the full protection of rights for the Lesbian Gay Bisexual Transgendered Queer and Intersex (LGBTQI) community as can be seen in the Court’s lengthy case law. The Court is not the only protector of human rights for the LGBTQI community; states as well as third parties like non-governmental organisations, also play significant roles in the fight for equality. I do not wish to draw attention away from these other actors, but rather look at what the Court could do to increase protection for LGBTQI persons, such as changing its stance on same-sex marriage.
This puzzle of ‘why’ has a variety of answers in the existing literature. There is the normative perspective which asks ‘why the Court should protect same-sex marriage’. Further, the Court’s methodology has been critiqued when it sides with the state rather than the individual’s right to equality. Other critiques have tried to find whether there is a right to marry for same-sex couples through article 8 – right to respect for private and family life – due to the Court’s progressive reading of this right. These arguments are important to the same-sex marriage debate as they look to the Court’s judgments from different perspectives. However, it appears that these arguments lack a general legal analysis and reflection of the Court’s decisions. This is especially the case when the theories that exist have either been denied by the Court in their decisions or offer only normative arguments and not realistic practical guidance for what the Court can change.
A recent study by Helfer and Voeten shows that states are more likely to legislate or judicially review in favour of the LGBTQI community if the Court has found a violation of the relevant right in that state. In light of more countries adapting to the Convention’s protections of LGBTQI people, one could surmise that it is only a matter of time before the Court interprets the Convention in accordance with legalising same-sex marriage and that constant litigation through the Court is the way forward.
I agree that it is only a matter of time until the Court interprets the Convention to protect same-sex marriage; however, as my findings will show, article 12 has a more restrictive nature – that cannot be so easily broadened by constant litigation. I want to understand what will motivate the Court to make this decision. This leads me to question: under what conditions will right to marry under the Convention include a right to same-sex marriage?
I have divided this overarching question into three research questions: 1) Can article 8 – including article 14 – be interpreted to allow for same-sex marriage? If not, then 2) Can article 12 be interpreted by the Court to protect same-sex marriage? If so, then 3) under what conditions will this be possible?
To answer these questions, I begin with a brief general overview of the relevant articles and the margin of appreciation (to help introduce the reader to the relevant articles and term). I then structure this paper into three chapters: chapter 4 addresses my first question on whether same-sex marriage can be read into article 8. Given the Court’s interpretation of article 8, this is the more logical first step, as article 12 was not properly discussed in relation to same-sex marriage until 2010. Up until 2010, there had been attempts to broaden article 8 to include not only the recognition of partnerships but hopefully – at some point – marriage. Chapter 4 highlights the rate of progress in LGBTQI rights, beginning with the early cases before the European Commission on Human Rights (the Commission) and including the 2015 case: Oliari and Others v Italy (Oliari). This historical review illustrates how the Court has significantly broadened the scope of article 8. Based on this, I conclude whether the Court can now grant homosexuals the right to marry under article 8.
Chapter 5 addresses the second research question on the application of article 12. I examine in-depth the Court’s interpretation of article 12, and what the Court perceives is within its limits regarding the right to marry. The inclusion of article 14 – prohibition of discrimination – will be addressed in both chapters as it provides another avenue for the Court to oblige states to legalise same-sex marriage. With a firm understanding of the Court’s current stance on this issue and the fact that neither articles 8 nor 14 are applicable, I answer the third question by illustrating the importance of the European consensus in the Court’s decision-making process. My central claim is that the Court will look to the European consensus if it to include same-sex marriage under article 12.
In Chapter 6, I define the European consensus – given the division among scholars as to what constitutes a consensus – according to how it is applied by the Court in the same-sex marriage cases. This chapter concludes by arguing that a majority of 24 states legalising same-sex marriage is the necessary threshold for the Court to review same-sex marriage under article 12. I conclude by arguing that it is this magic number - 24 states - that will lead to the Court granting same-sex marriage under article 12. The implications of this claim are (i) all applications to the Court must focus only on article 12 as that is the only relevant right for same-sex marriage and (ii) rather than focusing on the Court, advocates should instead push for domestic legislation in states that do not have same-sex marriage.