Strasbourg court rules that states are not obliged to allow gay marriage | Antoine Buyse | Law | guardian.co.uk

Strasbourg court rules that states are not obliged to allow gay marriage | Antoine Buyse | Law | guardian.co.uk

n a key judgment issued today, the European Court of Human Rights ruled on a complaint of a homosexual couple in Austria who were denied the right to marry. Although very recently (January 2010) Austria created the possibility to enter into a Registered Partnership for same-sex couples, marriage still is not possible. The applicants in this case, Schalk and Kopf, complained both under article 12 (right to marry) and article 14 (prohibition of discrimination) in conjunction with article 8 (right to private and family life). The court found no violation of their human rights, although it was very divided on the issue of discrimination (four votes against three in holding that Austria did not discriminate).

On the right to marry of article 12 ECHR, the court observed this was the first case in which it exmained whether people of the same sex had the right to marry. In earlier cases, the court had looked at the position of transsexuals, in which it had concluded that (para. 53)

"article 12 enshrined the traditional concept of marriage as being between a man and a woman. The court acknowledged that a number of contracting states had extended marriage to same-sex partners, but went on to say that this reflected their own vision of the role of marriage in their societies and did not flow from an interpretation of the fundamental right as laid down by the contracting states in the Convention in 1950."

As to the litteral text of article 12, the court held that, looked at in isolation, the text "be interpreted so as not to exclude the marriage between two men or two women" (para. 55). But it then continued to add that

"However, in contrast, all other substantive articles of the Convention grant rights and freedoms to 'everyone' or state that 'no one' is to be subjected to certain types of prohibited treatment. The choice of wording in article 12 must thus be regarded as deliberate. Moreover, regard must be had to the historical context in which the Convention was adopted. In the 1950s marriage was clearly understood in the traditional sense of being a union between partners of different sex."

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