Same-sex marriage ban upheld by court


THE EUROPEAN Court of Human Rights has found that denying same-sex couples the right to marry is not incompatible with the Convention on Human Rights. However, it also found that a same-sex couple is entitled to protection of their “family life”.

The case was brought by an Austrian couple against Austria in August 2004. Hörst Schalk and Johan Kopf had sought to marry in Austria, and had been refused.

The constitutional court of Austria upheld the decision to refuse, and they brought their case to the Strasbourg court, claiming that the refusal of Austria to provide them with the means to register their relationship contravened their right under Article 8 of the European Convention on Human Rights to family life, denied them the right to marry as provided for by Article 12 and discriminated against them on the grounds of sexual orientation, contrary to Article 14.

The Austrian government argued the state’s law on marriage defined it as a union between a man and a woman. It said there was not a European consensus to grant same-sex couples the right to marry, and that this issue fell within the margin of appreciation that allowed national legislatures to decide policy on the matter.

In January 2010 a Registered Partnership Act came into force in Austria. This permitted a registered partnership between same-sex couples, which obliged them to share a common home, to treat each other with respect and provide mutual support. It differed from marriage in Austrian law in certain rules relating to choice of name and in not allowing a couple in a registered partnership adopt a child or use artificial insemination.

The Strasbourg court pointed out that there was no European consensus regarding same-sex marriage. Only six out of 47 convention states allow same-sex marriage, though a majority permit some form of registered partnership between same-sex couples.

Under Article 9 of the EU Charter of Fundamental Rights, the question of whether or not to allow same-sex marriage is left to regulation by the national law of the contracting state.

“Marriage has deep-rooted social and cultural connotations which may differ largely from one society to another,” the court commented. “The court reiterates that it must not rush to substitute its own judgment in place of that of the national authorities, who are best placed to assess and respond to the needs of society.”

Referring to the applicants’ claim of discrimination, it said that the convention ought to be read as a whole. Contracting states enjoyed a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment.

A minority of the court disagreed with its conclusions, and issued a dissenting opinion that there had been a violation of Article 14 (on discrimination), taken in conjunction with Article 8, saying that the lack of any legal framework before the entry into force of the Registered Partnership Act, raised a serious problem.

By finding there had been no violation, the court endorsed a legal vacuum.

The Iona Institute welcomed the decision.

“The decision means that Council of Europe member states, including Ireland, are not obliged by the convention to recognise same-sex marriage or civil partnerships and that this does not amount to discrimination,” its director, David Quinn, said.

He said the Iona Institute supports giving legal protections to couples in same-sex relationships. It also believes that legal protections (maintenance and property rights, next-of-kin rights etc) should be given to anyone in a caring, dependent relationship whether that relationship is sexual in nature or not, he said.