The rights of same-sex couples and the approach of the ECtHR
Within the European Union the rights of same-sex couples has been a complicated matter. The distinction between same-sex couples and different-sex couples’ rights is still a controversial topic, partly because Member States (hereafter MS) have a different approach on married life. Some MS for example argued that marriage is only between a man and a woman, because of their religious perspectives e.g. Ireland. Some MS argued that marriage is between a man and a woman, because that is the only way they can reproduce offspring, e.g. Austria. But the European Court of Human rights (hereafter ECtHR) has also been pretty quiet towards this issue. This however gradually changed in recent years. The ECtHR has made a few judgements where it outlined the rights of same-sex couples concerning family life. Are the arguments of the ECtHR in line with the tendency within the EU towards this issue? Particularly when taking the low approval rates of same-sex marriages in Eastern European countries in consideration.
Firstly, before delving into this matter, one needs to keep in mind that while the EU and the ECtHR are two different orders they do sometimes overlap and influence each other. Especially when it comes to issues concerning human rights.
Secondly, when looking at the map concerning national human rights situation of lesbian, gay, bisexual, trans and intersex above, and the chart showing the contrast between the approval percentage of same-sex marriage and where the MS rank on family rights below, certain numbers stick out. It seems that the eastern European countries, and Italy, have the lowest percentage in regards to respecting human rights and full equality. Luckily though, in Italy at least, in a recent case the ECtHR ruled that Italy violated article 8 of the ECHR when it failed to legally recognize same-sex couples relationships. The court however did stress that MS still do not have a legal obligation to legalize same-sex marriage. Did the Court in this regard fail to validate the rights of same-sex couples? Before this question can be answered a quick overview of the significant judgements must be made.
As a legal starting point the articles 8, 12 and 14 of the ECHR play a fundamental roll. The following cases show a more clear reasoning behind the Court’s judgments. Prior to the Schalk and Korpf v Austria judgement, same-sex couples only enjoyed protection of their private life and not their family life. This was the first case where the Court established that same-sex couples enjoyed protection of their family life under article 8 of the ECHR. Even though the Court did stress that this judgement did not mean that MS were now obligated to legalize same-sex marriage, this was still a good step towards equal rights for same-sex couples.
In the same year another judgement was made: P.B. and J.S. v Austria. Here the Court ruled, for the first time ever, that a same-sex couple’s family life had been violated. MS were now compelled to treat unmarried same-sex and different-sex couples equally regarding social and other benefits.
The latest case concerning this issue is Pajić v Croatia. Here the Court affirmed that there was a violation of Article 8 jo. 14. The applicant had experienced a difference in treatment based on her sexual orientation concerning migration. The Court argued that MS enjoy a wide margin of appreciation concerning immigration. However it needs substantial reasons to justify discrimination on ground of sexual orientation and this was not the case. While these judgements are a good step towards equal rights for same-sex couples, there is still a clear distinction being made between married couples and non-married couples.
There are some legal scholars pointing out this distinction. For example prof. Paul Johnson, who rightfully argues in his article that while he agrees with this judgment, it however does not address the question of how long marriage will continue to hold a ‘special status’ for the Court. Because MS are still not required to extend considerable privileges that a marriage entails to same-sex couples. In order to solve this issue Jens Scherpe has a made a good argument in his book. He states that even though marriage is a complex and dynamic institution, there are still similarities between these different forms of cohabitation. He continues by saying that there are three themes that should be applied when it comes to judging rights and civil state issues: equality, privacy and pluralism, meaning a pluralistic outlook on civil state issues.
The approach to this issue as stated by Scherpe is a good beginning. But when taking the low-approval ratings of same-sex marriages in eastern Europe in consideration, it will still not be enough. As Johnson stated, the special status given to marriage in the EU by the ECtHR should change. Same-sex marriage is a difficult issue in eastern Europe and the ECtHR does not obligate these MS to make same-sex marriage legal. But it can tackle this matter by losing the advantageous rights marriage has within the EU. When these same rights are given to registered partners, which is allowed in the eastern European countries, the differences between marriage and registered partnership will no longer exist. Hereby leaving it to the MS whether or not they want to legalize same-sex marriage, but still protecting the rights of same-sex couples. Of course this is not a clear-cut solution without any problems, but it certainly gives the ECtHR room to protect the rights of same-sex couples.
Bibliography
Books:
Scherpe
Jens M. Scherpe, European Family Law Volume III: Family Law in a European in a European perspective, Edward Elgar publishing, 2016, p. 38.
Articles:
Johnson
Prof. Paul Johnson, Family beyond borders; Pajic v Croatia, ECHR Sexual Orientation Blog, 28 February 2016.
Cases:
Schalk and Kopf v Austria App. №3014/04 (ECHR, 24 June 2010).
P.B. and J.S. v Austria App. №18984/02 (ECHR, 22 July 2010).
Pajić v Croatia App. №68453/13 (ECHR, 23 February 2016).
Oliari and Others v Italy App. №18766/11 and
36030/11 (ECHR, 21 July 2015).
