European states will not be forced to allow gay marriage

30 November 2010 by

Schalk and Kopf v. Austria (application no. 30141/04) – Read judgment / press release / press release 2

The European Court of Human Rights has refused permission to appeal in a challenge to the ban on gay marriage in Austria. The effect of the decision is to make the court’s rejection of the same-sex couple’s claim final.

The decision means that the European Court of Human Rights will not force states to allow same-sex couples to marry, for now at least. This has a potential bearing on the UK, where a number of same-sex and heterosexual couples are currently bringing claims against UK laws which permit civil partnerships for same-sex couples but prevents them from marrying.

Horst Michael Schalk and Johann Franz Kopf claimed that the Austrian system – which from 1 January 2010 allowed for “registered” partnerships along similar lines to civil partnerships in the UK – breached their human rights. Specifically, they argued that the laws breached their article 12 “right to marry and found a family”, their article 8 rights to family life and their article 14 rights to be protected from discrimination.

Article 12 of the European Convention on Human Rights provides:

Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.

The court noted that the right is granted to “men and women“, and it includes the right to found a family. Whilst this could be interpreted as granting the right to two men or two women, the court observed that all other Convention rights are granted to “everyone”. As such, the choice of wording must have been deliberate. Moreover, the historical context of the 1950s when the Convention was drafted must also be considered, as in the 1950s “marriage was clearly understood in the traditional sense of being a union between partners of different sex“.

The couple argued, rightly, that the Convention is a living instrument and must be adapted to fit changing social reality. But the court was unpersuaded that social circumstances and attitudes had changed enough that same-sex marriage should be regarded as mandatory for states:

Although, as it noted in Christine Goodwin [a case against the UK relating to transsexual rights], the institution of marriage has undergone major social changes since the adoption of the Convention, the Court notes that there is no European consensus regarding same-sex marriage. At present no more than six out of forty-seven Convention States allow same-sex marriage

The court distinguished the Christine Goodwin case, in which the UK was held to have breached a transsexual’s rights by not recognising her as a woman for the purposes of benefits payments and other civil rights,  as in that instance there had been a “convergence of standards regarding marriage of transsexuals in their assigned gender”.

The court did leave open the potential for future claims on the basis of article 12, as Article 9 of the Charter of Fundamental Rights, which sets out in a single text the range of rights available to European Citizens and which became binding in December 2009, had deliberately dropped the reference to men and women. The court concluded:

Regard being had to Article 9 of the Charter, therefore, the Court would no longer consider that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two persons of the opposite sex. Consequently, it cannot be said that Article 12 is inapplicable to the applicants’ complaint. However, as matters stand, the question whether or not to allow same-sex marriage is left to regulation by the national law of the Contracting State.

One minor victory which the Austrian couple can take from the ruling is that the court has, rejecting the reasoning in a number of its previous decisions, accepted that a same-sex couple can enjoy “family life” within the meaning of article 8 of the European Convention on Human Rights (the right to private and family life). Previously, in the eyes of the court same-sex couples had been restricted to being able to enjoy private but not family life. Again, the reasoning was focussed on changing social realities:

The Court notes that since 2001, when the decision in Mata Estevez was given, a rapid evolution of social attitudes towards same-sex couples has taken place in many member States. Since then a considerable number of member States have afforded legal recognition to same-sex couples… Certain provisions of EU law also reflect a growing tendency to include same-sex couples in the notion of “family” (see paragraph 26 above).

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.


It follows from this decision that if a time comes where a significant number of European states – say a majority – allow gay marriage, then the European Court of Human Rights would reconsider the issue on the basis that there has been a “convergence of standards” between member states and it would feel more confident in taking a stand on the issue. But until that time, gay marriage campaigners in the UK will find little support from Europe, which in this instance is leaving this sensitive social issue to the discretion of individuals states.

The effect of this judgment for the couples currently bringing claims in the UK is probably neither good or bad. If the court had ruled for the couple, then this would have been persuasive but not binding on the UK courts, which must take into account European Court of Human Rights judgments but need not follow them.

That said, just because the Strasbourg court has ruled out forcing the issue under the European Convention on Human Rights does not mean that the UK courts will necessarily do likewise. The decision in Schalk and Kopf clearly supports the view that the European Convention could include a right for homosexuals to marry. But it is for individual states to say whether it does in their particular context. The UK courts can and often do expand on or go against rulings from Strasbourg.

In light of the focus on emerging social norms, those bringing claims in the UK would do well to adopt the strategy of campaigners in California who have recently persuaded a federal court to strike down a ban on gay marriage. They relied not just on constitutional principles but also an evidence-based examination of changing attitudes towards gay marriage in the US. The judge in that case found that

The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage

A UK court may ultimately decide to leave the matter to Parliament, as courts sometimes do in the cases involving sensitive social issues. The reason is that courts are wary to not be seen as law makers rather than law interpreters, given that the latter is meant to be the role of the democratically elected Parliament. In practice the position is more complex, and courts often do make judgments involving controversial social issues. And with almost two-thirds of the population supporting full gay marriage rights according to a recent poll, a court may now feel there is enough of a “convergence of standards” within the UK in order to rule that gay marriage is a human right.

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  1. Shawn says:

    Ah yes, ya just gotta love good ol’ Europa. So far ahead of the Americans you folks are.

  2. Anna says:

    An outrageous judgement.

  3. Well, that’s a really interesting article. As fas as I am concerned, even though I am an heterosexual, I cannot understand why a state should not allow homosexuals getting married. I could admit that a religion would not ccept it due to its specific principles but in the case of the legality, I do not think that having an homosexual marriage would harm anybody.

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