The European Court of Human Rights' Decision in the Austria Same-Sex Marriage Case
On June 24, a seven-member chamber of the European Court of Human Rights issued its judgment in the case of Schalk & Kopf v. Austria, Application No. 30141/04, denying the applicants' claim that Austria had violated their rights under the European Convention on Human Rights by refusing to allow this same-sex couple to marry. While the case can be chalked up as a loss for the cause of same-sex marriage in Europe, the opinion lends itself to a more optimistic reading for proponents of same-sex marriage, as the Court seemed to acknowledge progress on several fronts.
The members of the Chamber for this case were Christos Rozakis (Greece - President of the Chamber), Anatoly Kovler (Russia), Elisabeth Steiner (Austria), Dean Spielmann (Luxembourg), Sverre Erik Jebens (Norway), Giorgio Malinverni (Switzerland), and Goergoe Nicolaou (Cyprus). Thus, only one judge came from a country that presently allows same-sex marriages, and three more came from countries that have some form of registered partnership.
This was private litigation, not brought as a test case by LGBT public interest groups, and actually discouraged by them as premature, with the view that the number of countries that are signatory to the Convention that allow same-sex marriages was too small to support the necessary argument - given the way this court operates - that a right of same-sex couples to marry has advanced sufficiently in Europe to be treated as a consensus norm of interpretation of the Convention's guarantee of marriage rights and respect for family life.
The applicants, Horst Michael Schalk and Johan Franz Kopf, a gay male couple residing in Vienna, sought permission to marry from local authorities on September 10, 2002. Ten days later the Vienna Municipal Office denied their request, holding that Austria's Civil Code only contemplated marriages of different-sex couples. Their appeal to the Vienna Regional Governor was unsuccessful, as was their appeal to the Constitutional Court of Austria, which rejected their claim on December 12, 2003, taking the view that the right to marry set forth in Article 12 of the European Convention, which the Austrian Constitutional Court considers to be constitutional law in Austria, did not extend to same-sex marriages. That court acknowledged that the European Court has construed Article 8 of the Convention, with its requirement that governments respect the private lives of their citizens, as extending to same-sex relationships to the extent that they may not be forbidden or criminalized, but opined that this did "not give rise to an obligation to change the law of marriage." The court pointedly abstained from opining on whether existing law fell short of equality requirements by treating married couples more favorably than same-sex couples, as the sole question raised in the case was marriage.
After the Austrian court had ruled, but before the European Court had taken up the case, the Austrian government took up the question of providing a legal status for same-sex partners, ultimately passing a Registered Partnership Act, which became effective January 1, 2010, shortly before the Schalk & Kopf case was argued before the European Court. The RPA allows cohabiting same-sex couples to register their partnerships, and made amendments to a broad array of social legislation to extend rights to registered partners that were previously available only to legal spouses. There remain important differences between registered partnerships and marriages, especially relating to laws on parentage, where same-sex couples may not jointly adopt, second-parent adoptions are not allowed, and alternative insemination is not made available.
The European Court noted that European countries have been moving in the direction of legal recognition for same-sex partners. Of the 47 states that are members of the Council of Europe, six allow same-sex marriage - Belgium, the Netherlands, Norway, Portugal, Spain and Sweden - and thirteen have some sort of registered partnership scheme, varying in the number and comprehensiveness of rights conveyed - Andorra, Austria, Czech Republic, Denmark, Finland, France, Germany, Hungary, Iceland, Luxembourg, Slovenia, Switzerland, and the United Kingdom. Ireland is soon to join that number, judging by recent news reports. Thus, at present, a majority of member States do not provide any legal status available to same-sex partners, but a substantial minority do, while a handful of states provide marriage.
These statistics are important for purposes of the jurisprudence of the Court, for the European Court of Human Rights sees its role differently from the role of national constitutional courts. In construing a Convention that originated decades ago by a rather smaller group of countries, the Court sees its role as identifying trends and embodying an emerging concensus when it construes the open-textured provisions of the Convention.
The Court points out that the applicants "relied on the Court's case-law according to which the Convention is a living instrument which is to be interpreted in present-day conditions. In the applicants' contention Article 12 should in present-day conditions be read as granting same-sex couples access to marriage or, in other words, as obliging member States to provide for such access in their national laws." But the court finds that Europe as a whole has not yet reached that point. "The Court is not persuaded by the applicants' argument. Although, as it noted in Christine Goodwin [a case in which the Court ruled that the U.K. had to recognize an individual's gender identity in determining whom they could marry], 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." By contrast, the Court noted, in the Goodwin case it had found that there was "a convergence of standards regarding marriage of transsexuals in their assigned gender." By forbidding such marriages in that case, the U.K. was out of step with the consensus and thus held to be in violation of the Convention.
The Court also noted that the Charter of Fundamental Rights of the European Union, which applies to a smaller group of states who are part of the Union, has dropped the reference to the right of men and women to marry that is found in Article 12 of the Convention in favor of a more general statement of the right to marry, suggesting that perhaps the member States of the Union are further along on this development, but the official commentary to the Charter specifically states that there is "no explicit requriement that domestic laws should facilitate" same-sex marriages.
The Court saw the Charter provision as relevant to its task of identifying the emerging consensus, stating that "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. In that connection the Court observes that marriage has deep-rooted social and cultural connotations which may differ largely from one society to another. 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." (Two members of the Court dissented from this point, finding that Article 12 did not apply.)
This is a bit complicated, but what it seems to amount to is a view by all the members of this chamber of the Court that the meaning of marriage is changing, but that a consensus has not yet emerged in Europe that all nations must allow same-sex couples to marry in order to be in compliance with European human rights standards. On the other hand, a majority of this chamber of the Court has acknowledged a trend moving in that direction, perhaps signalling that at some future time this will become the European norm.
In the meantime, the Court had to examine an alternative argument alleging violation of Article 14 "taken in conjunction with " Article 8. Article 8 provides that "everyone has the right to respect for his private and family life." Article 14 broadly forbids discrimination with respect to the rights enumerated in the Convention. In the past, the European Court of Human Rights had invoked Article 8's reference to "respect for private life" in conjunction with Article 14 in its decision to strike down laws against consensual sodomy, finding that making gay sex a crime was not consistent with the obligation to respect for the private life of "everyone." Now the applicants were arguing that Article 8 also requires respect for "family life" and by excluding same-sex couples from marriage was improperly discriminating with respect to this Convention right, because same-sex couples who live together in a stable relationship should be considered families.
Would Member States satisfy the obligation of respect for family life, in the case of same-sex couples, by passing registered partnership laws? Could the denial of the right to marry be considered a violation of the right to respect for family life? "The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits," said the Court in response to this argument.
Here, the Court took a new step in its developing jurisprudence of Article 8. "It is undisputed in the present case that the relationship of a same-sex couple like the applicants' falls within the notion of 'private life' within the meaning of Article 8," wrote the Court. "However, in the light of the parties' comments the Court finds it appropriate to address the issue whether their relationship also constitutes 'family life.'"
Here, the Court noted that its past cases had applied the concept of family life beyond formal marriage to "other de facto 'family' ties where the parties are living together out of wedlock," particularly in noting the relationship of parents to children born to unmarried heterosexual couples. The Court took note of the increasing number of European countries that provide registered partnerships for same-sex couples, and considered that it was time to acknowledge that same-sex couples also enjoy a right to respect for their "family life." "The Court notes that since 2001.... 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.' 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. Consequently the relationship of the applicants, a cohabiting same-sex couple living in a stable de facto partnership, falls within the notion of 'family life,' just as the relationship of a different-sex couple in the same situation would."
Here the applicants ran up against the peculiar nature of this court and its jurisprudence, however, for the adjudication of discrimination claims includes the idea of the "margin of appreciation," a recognition that Europe has great social and religious diversity and that individual States are left with significant discretion as to how they fulfill their obligations under the Convention. The Court noted that it has "held repeatedly that, just like differences based on sex, differences based on sexual orientation require particularly serious reasons by way of justification," but, "on the other hand, a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy."
Here is where the decision verges on significance for same-sex couples living in European member States that have not yet established any legal rights for same-sex couples. "While the parties have not explicitly addressed the issue whether the applicants were in a relevantly similar situation to different-sex couples, the Court would start from the premise that same-sex couples are just as capable as different-sex couples of entering into stable committed relationships. Consequently, they are in a relevantly similar situation to a different-sex couple as regards their need for legal recognition and protection of their relationship. The applicants argued that they were discriminated against as a same-sex couple, firstly, in that they still did not have access to marriage and, secondly, in that no alternative means of legal recognition were available to them until the entry into force of the Registered Partnership Act."
The Court found that it had to construe the Convention as a whole, and thus having concluded that Article 12 did not obligate member States to allow same-sex marriages, it would not find such an obligation through this alternative route. However, "turning to the second limb of the applicants' complaint, namely the lack of alternative legal recognition, the Court notes that at the time when the applicants lodged their application they did not have any possibility to have their relationship recognised under Austrian law. That situation obtained until 1 January 2010, when the Registered Partnership Act entered into force. The Court reiterates in this connection that in proceedings originating in an individual application it has to confine itself, as far as possible, to an examination of the concrete case before it. Given that at present it is open to the applicants to enter into a registered partnership, the Court is not called upon to examine whether the lack of any means of legal recognition for same-sex couples would constitute a violation of Article 14 taken in conjunction with Article 8 if it still obtained today. What remains to be examined in the circumstance of the present case is whether the respondent State should have provided the applicants with an alternative means of legal recognition of their partnership any earlier than it did."
As to this, the Court found that although Austria was not in "the vanguard," its legislature could not be "reproached" for taking as long as it did to pass the Partnership Act, considering that a majority of member States haven't gotten that far yet. The Court also found, although the question was perhaps not technically before it in the case, that it was within the margin of appreciation for a state to enact a Registered Partnership Act that did not provide every single right and benefit that was available for different-sex marriage couples, since "this corresponds on the whole to the trend in other member States." The Court also noted that "the applicants have not claimed that they are directly affected by the remaining restrictions concerning artificial insemination or adoption," so "it would go beyond the scope of the present application to examine whether these differences are justified. On the whole, the Court does not see any indication that the respondent State exceeded its margin of appreciation in its choice of rights and obligations conferred by registered partnership."
As to much of the opinion, there was unanimity in the seven-member chamber of the court, but as to the last point, there was a 4-3 split, as a minority of the panel found that Austria had violated the applicants' Convention rights under Article 8 read in conjunction with Article 14. "The lack of any legal framework before the entry into force of the Registered Partnership Act raises a serious problem," wrote these dissenters. "In this respect we note a contradiction in the Court's reasoning. Having decided in paragraph 94 [of the opinion] that 'the relationship of the applicants falls within the notion of "family life"', the Court should have drawn inferences from this finding. However, by deciding that there has been no violation, the Court at the same time endorses the legal vacuum at stake, without imposing on the respondent State any positive obligation to provide a satisfactory framework, offering the applicants, at least to a certain extent, the protection any family should enjoy."
These dissenters did not take any position on whether the Registered Partnership Act would suffice to cure the discrimination problem, but argued that "the Court should have found a violation of Article 14 taken in conjunction with Article 8 of the Convention because the respondent Government did not advance any argument to justify the difference of treatment, relying in this connection mainly on their margin of appreciation. However, in the absence of any cogent reasons offered by the respondent Government to justify the difference of treatment, there should be no room to apply the margin of appreciation. Consequently, the 'existence or non-existence of common ground between the laws of the Contracting States' is irrelevant as such considerations are only a subordinate basis for the application of the concept of the margin of appreciation. Indeed, it is only in the event that the national authorities offer grounds for justification that the Court can be satisfied, taking into account the presence or the absence of a common approach, that they are better placed than it is to deal effectively with the matter."
Concluded these dissenters: "Today it is widely recognized and also accepted by society that same-sex couples enter into stable relationships. Any absence of a legal framework offering them, at least to a certain extent, the same rights or benefits attached to marriage would need robust justification, especially taking into account the growing trend in Europe to offer some means of qualifying for such rights or benefits."
There was an additional partial dissent by two members of the Court, who argued that developments subsequent to the initial adoption of the Convention had not advanced sufficiently to justify departing from a construction of Article 12 that limited the right to marry to different-sex couples. These dissenters argued that the Convention leaves it totally up to the discretion of member States in deciding whether to allow same-sex marriage. They also argued that the Charter's dropping of references to men and women in its articulation of the right to marry was not relevant to construing the Convention. In some respects, one might consider this dissent more a matter of semantics than a sharp departure from the majority view, however, it seemed clear that these two members of the Chamber were less open to the argument for same-sex marriage than their colleagues.
The partial dissenters who favored finding a violation of Article 8 in conjunction with Article 14 were Judges Rozakis (Greece), Spielmann (Luxembourg), and Jebens (Norway). The partial dissenters who thought the Court went too far in its discussion of Article 12 were Judges Malinverni (Switzerland) and Kovler (Russia).
FYI - Iceland should be listed in the list of countries that allow same-sex marriage (as of 27 June 2010)
Posted by: Lew Lasher | July 06, 2010 at 04:26 PM
As of the date of the opinion, June 24, Iceland's law had not gone into effect. But you are correct, Lew, as of a few days later, there are seven. (Actually, the second dissent said there were five, since they hadn't caught up with Portugal, evidently.) This only goes to show that the rationale for the Court's opinion is eroding as the number of member States in the Council of Europe that allow same-sex marriage increases.
Posted by: Art Leonard | July 06, 2010 at 04:32 PM