No right to gay marriage, court rules

Chuchoter

European law does not require countries to grant same-sex couples the right to marry, even if some states have already done so, the top human rights court has ruled.

The Strasbourg-based European Court of Human Rights (ECHR) rejected an appeal by two Austrian men who said their country's refusal to allow same-sex marriage violated the right to marry and prohibition of discrimination in European rights law.

The ECHR is part of the Council of Europe, which promotes democracy and the rule of law among its 47 member states. Its rulings are binding on council members since they have signed the European Convention on Human Rights.

"The court observed that, among Council of Europe member states, there is no consensus regarding same-sex marriage," the ECHR said in a statement. Only seven of the Council's 47 members have approved same-sex marriage.

"The court underlined 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."

In its ruling, the court said same-sex couples could not be denied marriage on the grounds they could not naturally procreate but could claim a right to a family life like heterosexual couples.

This still "did not impose an obligation on states to grant same-sex couples access to marriage," it said.

http://www.irishtimes.com/newspaper/breaking/2010/0625/breaking45.html

Rev Hellfire

But at least on a positive side I would have thought the judge does acknowledge “an emerging European consensus towards legal recognition of same-sex couples”. So its not exactly a door slammed shut.

Chuchoter

Rev Hellfire wrote: »

But at least on a positive side I would have thought the judge does acknowledge “an emerging European consensus towards legal recognition of same-sex couples”. So its not exactly a door slammed shut.

Its fairly shut. I mean its not nailed to the doorframe but...

Iwasfrozen

crayolastereo wrote: »

Its fairly shut. I mean its not nailed to the doorframe but...

Is this ruling a big surprise though?

Annasopra

Iwasfrozen wrote: »

Is this ruling a big surprise though?

It could have gone either way - It was a 4-3 Judgement so it is a surprise in some ways yes

http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=30141/04&sessionid=55955996&skin=hudoc-pr-en

wonderfulname

It is unfortunate but to be honest not unexpected. Having heard this argument around but somehow nothing about the case I had a little look see, in my opinion the convention can be taken either way.

And also Johnnymcg, it may have been 4-3 with regards to Article 8 and 14, but it was unanimously decided that Article 12, the only one of these to deal with marriage itself, did not apply to same sex unions.
In time popular opinion will change and all of this will be read differently/ammended but for now I find it hard to envisage the EU telling countries to bring into law something so contentious, the fact is they can't handle the backlash and anti-EU sentiment which would arise from such a decision.
Its sad that such a thing would come before granting true equal rights but in my opinion it is the case.

Chuchoter

Iwasfrozen wrote: »

Is this ruling a big surprise though?

Yes actually. Considering a lot of the pro gay marriage argument is its everyones right to marry the person they love, and now obviously its not.

wonderfulname

crayolastereo wrote: »

Yes actually. Considering a lot of the pro gay marriage argument is its everyones right to marry the person they love, and now obviously its not.

Nothing has been done or said to change the current status, everything remains as it was before, this ruling is not like the equivalent would be in a country, it only means the EU cannot force gay marriage into law, not that it is preventing it altogether. Don't worry, the argument still exists, the only thing is it still has to be used.

azezil

Sounds like a good result to me. So they can't force every country allow gay marriage (nor should they IMO), they do however say gay people have an equal right to be recognised as a family unit. With the same rights and responsibilities thereof.

Dinocarlo

It will just take time. A few years, I'd say.

Iwasfrozen

Dinocarlo wrote: »

It will just take time. A few years, I'd say.

I doubt it. The European Court of Human Rights doesn't tend to look only at the present and instead takes into account possible future trends when making decisions.

L1011

azezil wrote: »

Sounds like a good result to me. So they can't force every country allow gay marriage (nor should they IMO), they do however say gay people have an equal right to be recognised as a family unit. With the same rights and responsibilities thereof.

And seeing as its a wobbly interpretation of "family" that Coir, etc, claim would make civil marriage unconstitutional, that section of the judgement could be VERY valuable in an Irish context.

Chuchoter

azezil wrote: »

Sounds like a good result to me. So they can't force every country allow gay marriage (nor should they IMO), they do however say gay people have an equal right to be recognised as a family unit. With the same rights and responsibilities thereof.

Any particular reason why every gay person in every EU country shouldn't be able to get married?

Iwasfrozen

crayolastereo wrote: »

Any particular reason why every gay person in every EU country shouldn't be able to get married?

They aren't able to get married because the law doesn't let them.

rainbow kirby

Iwasfrozen wrote: »

They aren't able to get married because the law doesn't let them.

The question was why *shouldn't* they be able to get married, not why *aren't* they able to get married. Answer the question. :pac:

Aard

crayolastereo wrote: »

Any particular reason why every gay person in every EU country shouldn't be able to get married?

There is no reason, imo, why they shouldn't. The only reason I can see is whether "tradition" is prescriptive, rather than descriptive.

Iwasfrozen

rainbow kirby wrote: »

The question was why *shouldn't* they be able to get married, not why *aren't* they able to get married. Answer the question. :pac:

I did. They shouldn't be able to get married because the law doesn't let them.

wonderfulname

crayolastereo wrote: »

Any particular reason why every gay person in every EU country shouldn't be able to get married?

The question posed here was not should every gay person in the EU be allowed to marry, it was should the EU force member states to change legislation and constitutions in that regard. In my opinion a positive result would have been horrific for the EU, they would have grossly overstepped the line as to how much input they can acceptably put into member states affairs.
Considering that 56% of EU citizens are opposed to gay marriage it really wouldn't pass unnoticed. Take into account how the EU is currently perceived in countries such as Greece due to economic issues, and then that only 15% of the population there supports gay marriage. You can see that whilst it would be a victory of sorts for the rights movements, it would be a bitter and hollow one.

Sometimes there are more important things than a swift resolution.

azezil

wonderfulname wrote: »

The question posed here was not should every gay person in the EU be allowed to marry, it was should the EU force member states to change legislation and constitutions in that regard. In my opinion a positive result would have been horrific for the EU, they would have grossly overstepped the line as to how much input they can acceptably put into member states affairs.
Considering that 56% of EU citizens are opposed to gay marriage it really wouldn't pass unnoticed. Take into account how the EU is currently perceived in countries such as Greece due to economic issues, and then that only 15% of the population there supports gay marriage. You can see that whilst it would be a victory of sorts for the rights movements, it would be a bitter and hollow one.

Sometimes there are more important things than a swift resolution.

Couldn't have put it better myself. Also the title of this thread is grossly misleading.

LookingFor

Just got around to skimming through the judgment itself, and to add a little more colour to the above posts, it's interesting to note that ruling on whether countries should be obliged to extend marriage rights to same-sex couples is coached in almost entirely the same terminology and reasoning as the earlier judgments that did not extend consideration of these issues to fall under 'family life'...yet now, 9 years later, the court has ruled that these issues for same-sex couples do fall under protections re. 'family life'.

92. In contrast, the Court’s case-law has only accepted that the emotional and sexual relationship of a same-sex couple constitutes “private life” but has not found that it constitutes “family life”, even where a long-term relationship of cohabiting partners was at stake. In coming to that conclusion, the Court observed that despite the growing tendency in a number of European States towards the legal and judicial recognition of stable de facto partnerships between homosexuals, given the existence of little common ground between the Contracting States, this was an area in which they still enjoyed a wide margin of appreciation (see Mata Estevez v. Spain (dec.), no. 56501/00, ECHR 2001-VI, with further references). In the case of Karner (cited above, § 33), concerning the succession of a same-sex couples’ surviving partner to the deceased’s tenancy rights, which fell under the notion of “home”, the Court explicitly left open the question whether the case also concerned the applicant’s “private and family life”.

93. The Court notes that since 2001, when the decision in Mata Estevez was given, 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 (see above, paragraphs 27-30). Certain provisions of EU law also reflect a growing tendency to include same-sex couples in the notion of “family” (see paragraph 26 above).

94. 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.

This is actually a pretty major step.

Now note much of the reasoning applied to the issue of whether countries should be obliged to extend access to marriage to same-sex couples:

105. 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 (see Courten, cited above; see also M.W. v. the United Kingdom (dec.), no. 11313/02, 23 June 2009, both relating to the introduction of the Civil Partnership Act in the United Kingdom).

Same stuff about no consensus and needing to give States a margin of appreciation on this issue that previously applied to the notion of considering these cases in the context of protection of 'family life'.

So yeah, I think there's reason to be hopeful in the future. (Not to mention that 3 of the judges and all the NGOs who had an input in the case saw that there was in fact a breach of the protections offered under Article 14 in conjunction with Article 8, the second approach that the couple took in their case).

I'm also guessing that in the context of the debates going on in The Irish Times, that the priests citing this judgment didn't actually read it. Because I doubt they'd like much the idea that the ECHR recognises same-sex relationships as falling under protections of 'family life'. I also am not at all sure when referencing this judgment where Vincent Twomey was getting the whole 'marriage of a man and woman to the exclusion of all others' thing from, something he seemed to be quoting from somewhere...but as far as I know, our own constitution actually makes ZERO reference to gender in the article on marriage, and the European Convention of Human Rights has also had the reference to 'Men and Women' removed too.

LookingFor

Not to rabbit on, but there's an interesting article on the ruling here that parses some interesting points out too:

http://www.guardian.co.uk/law/2010/jun/29/europe-rules-same-sex-marriage-austria

However, the court did state clearly that the right to marry does not apply only to persons of the opposite sex. The EU charter of fundamental rights – accepted by all EU states — guarantees the right to marry, deliberately excluding any reference to gender. This should mean that in those countries that grant access to marriage for all couples, any distinction between same-sex and heterosexual marriage would be arguable discrimination under the convention.

The latter might be an interesting point in an Irish context given the distinctions between the accommodation made under the Civil Partnership bill and that of civil marriage. In this ruling, the court considered it out of scope to determine if Austria's distinction between the partnership offered to gay people was discriminatory because the applicants had not explicitly raised these distinctions as issues for them. However, there are many gay couples for whom these distinctions are quite material (e.g. wrt parental rights), and a case they might take would be interesting to watch. Further hints at what might lie in such a case:

But the court did for the first time recognise that a same-sex couple in a stable relationship constitutes "family life" in the same way that a heterosexual couple does. The three dissenting judges argued strongly that there was discrimination, in that Austria gave no legal recognition to same-sex relationships before 2010 and gave no arguments about why it would treat people differently on the grounds of their sexual orientation.

In summary:

Although the implications of this case for gay marriage are disappointing to Schalk and Kopf, they have achieved a clear precedent for the future. In recognising that the right to family life and the right to marry are applicable to same-sex relationships, the court has effectively said it will declare it a duty for states to recognise such rights, once enough states have done so.