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The European Court of Human Rights unanimously confirms the absence of the right to same-sex marriage

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Here is the press release from the European Center for Law & Justice:

The ECHR unanimously confirms the absence of the right to same-sex marriage

On June 9, 2016, the European Court rendered its decision in the case of Chapin and Charpentier v. France (no. 40183/07). It called into question the cancellation by the French courts of the “marriage of Bègles” celebrated in 2004 between two men, in violation of French law.

By this decision, the European Court of Human Rights recalls, unanimously, that the European Convention on Human Rights does not include a right to marriage for homosexual couples, either in terms of the right to respect for private and family life (art. 8) than that of getting married and founding a family (art. 12). 

More specifically, this new decision confirms a series of judgments, recalling in particular that: the question of same-sex marriage is “governed by the national laws of the Contracting States” (§ 36, referring to the Schalk and Kopf v. Austria (no. 30141/04); Article 12 enshrined the traditional concept of marriage, namely the union of a man and a woman” and “did not impose on the respondent government the obligation to open marriage to a homosexual couple” (§ 36, referring to Gas and Dubois v. France, n°25951/07, § 66); Article 12 “could not be understood as imposing such an obligation [to open marriage ] to the Contracting States”.

This reminder of the recent Hämäläinen v. Finland [GC] (n°37359/09), and Oliari and others v. Italy (n°18766/11 and 36030/11), has a strong impact since it recognizes a theoretical limit to the literal interpretation of the right to marry (§ 39); with regard to the right to respect for private life (guaranteed in article 8) and the principle of non-discrimination (article 14), “States remain free (…) to open marriage only to heterosexual couples and (…) benefit from a certain margin of appreciation in deciding the exact nature of the status conferred by the other means of legal recognition”, (referring to the Schalk and Kopf judgment, § 108 and Gas and Dubois, § 66);

The European Center for Law & Justice (ECLJ) welcomes this decision, which it considers to be consistent with a fair interpretation of the European Convention on Human Rights.

The ECLJ notes, however, that this decision, following the Oliari judgment, does not completely close the possibility of a future evolution of the Court’s position in favor of a right to same-sex marriage as a component of a “recognition” of stable relationships, while acknowledging that such an interpretation cannot be based on the letter of the Convention.

The issue of same-sex marriage confronts the Court with the limits of its power to interpret the Convention, limits marked by the very letter of this treaty and by the explicit will of a significant number of its States Parties. While it is still appropriate to apply the Convention to developments in society, it is on the other hand abusive to claim to “evolve” the very content of the Convention.

Gregor Puppinck

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