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Europe court finds no right to same-sex marriage

By Dwyer Arce

[JURIST] The European Court of Human Rights (ECHR) [official website] on Thursday ruled [judgment; press release] 4-3 that the European Convention on Human Rights [text] does not mandate that member states recognize same-sex marriages [JURIST news archive]. The applicants, an Austrian same-sex couple, argued that their country's prohibition on same-sex marriage violated their rights under the Article 8 right to private and family life, the Article 12 right to marry and the Article 14 prohibition against discrimination. They contended that because of social changes, marriage is no longer an institution aimed at procreation and the education of children and is instead a "union of two persons which encompassed all aspects of their lives." The Austrian government argued that because of the wording of Article 12 and the lack of European consensus on the issue, the court should uphold the ban on same-sex marriage. The UK government intervened in favor of Austria, arguing that there was no reason to depart from ECHR case law in Austria's favor. Four non-governmental organizations intervened as well, arguing that denying marriage to same-sex couples was discriminatory and that the prohibition could not be rationally justified. In rejecting the applicants' argument and finding no violation of the convention, the court noted that only six of 47 states party to the convention had legalized same-sex marriage, stating:

The Court cannot but note that there is an emerging European consensus towards legal recognition of same-sex couples. Moreover, this tendency has developed rapidly over the past decade. Nevertheless, there is not yet a majority of States providing for legal recognition of same-sex couples. The area in question must therefore still be regarded as one of evolving rights with no established consensus, where States must also enjoy a margin of appreciation in the timing of the introduction of legislative changes[.]

Three judges dissented, agreeing with the majority as to the Article 12 claim but dissenting with regard to Articles 8 and 14.

The applicants were denied a marriage license by Austrian authorities in 2002 due to a law that allows only opposite-sex couples to enter into marriage contracts. The Austrian Constitutional Court [official website] dismissed the applicants' complaint the following year, causing the applicants to bring the case to the ECHR in 2004. Earlier this month, a German court ruled that a same-sex marriage performed abroad must be recognized as a registered partnership [JURIST report] in Germany. Also in June, the Icelandic Althingi [official website, in Icelandic] unanimously passed legislation [JURIST report] legalizing same-sex marriage. Last month, Portuguese President Anibal Cavaco Silva [official website, in Portuguese] signed a bill [JURIST report] that legalized same-sex marriage but stopped short of allowing same-sex couples to adopt. Same-sex marriage is also recognized in Belgium, the Netherlands, Spain, Sweden and Norway [JURIST reports], while several other countries, including the UK, France and Austria recognize civil unions between same-sex partners. Same-sex marriage has also been recognized nationwide in Canada and South Africa and in certain jurisdictions in Mexico and the US [JURIST reports].

Full post as published by JURIST - The Paper Chase on June 25, 2010 (boomark / email).