Monday, 28 June 2010

Di-ve: No obligation to allow same sex marriages

by -
28 June 2010

The European Convention on Human Rights does not oblige states to ensure homosexual couples have a right to marry, the European Court of Justice ruled.

The ECJ was ruling on an application by Austrian nationals Horst Michael Schalk and Johann Franz Kopf, who in 2002 asked the competent authorities to allow them to contract marriage.

Their request was refused by the Vienna Municipal Office on the grounds that marriage could only be contracted between persons of opposite sex and was confirmed on appeal, and again by the Constitutional Court.

The application was lodged with the ECHR in 2004, complaining that they were discriminated against on account of their sexual orientation since they were denied the right to marry and did not have any other possibility to have their relationship recognised by law (until the entry into force of the Registered Partnership Act in 2010, which aimed to provide same-sex couples with a formal mechanism for recognising and giving legal effect to their relationships).

The Court observed that among Council of Europe member states there was no consensus regarding same-sex marriage and stressed that national authorities were best placed to assess and respond to the needs of society in this field, given that marriage had deep-rooted social and cultural connotations differing largely from one society to another.

The Court found that Article 12 (the right to marry) did not impose an obligation on the Austrian government to grant a same-sex couple access to marriage. It also ruled out that such a right was derived from the point of view of discrimination or the right to respect for a private and family life.

The Court observed that while there was an emerging European consensus towards legal recognition of same-sex couples, there was not yet a majority of states providing for it. It also said that it was not convinced by the argument that if a state chose to provide same-sex couples with an alternative means of recognition, it was obliged to confer a status on them which corresponded to marriage in every respect.

The ruling was not unanimous.

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