Debate over same-sex marriage is escalating—and not just in the United States. Over the past ten years, Western Europe has moved to redefine marriage, but Eastern Europe has reiterated the constitutionality of marriage as the union of man and woman. As a result, the European continent has become more and more divided. To date, eleven European countries have legally redefined marriage, and within the coming months, the Supreme Court of the United States will decide on the constitutionality of state laws defining marriage. This judgment will have considerable impact.
In Western Europe, as in the US, same-sex marriage is largely presented as a question of equality and non-discrimination—in other words, in terms of human rights. The Council of Europe, whose aim is to guarantee and promote respect for human rights in Europe as articulated in the European Convention on Human Rights, is the principal advocate in this debate. In March and April of 2010, the Council adopted a recommendation and a resolution advising all member states to adopt measures against what they view as discrimination founded on sexual orientation or gender identity. These documents did not recommend the creation of same-sex marriage, but they were explicitly supportive of civil partnership.
Just a few months later, in June 2010, the European Court of Human Rights (ECHR) ruled in Schalk and Kopf v. Austria. For the first time, the court ruled that the relationship of two same-sex partners falls under the notion of “family life” rather than only private life, “just as the relationship of a different-sex couple.” That ruling guaranteed same-sex couples what it viewed as equal treatment in regard to the protection of family life. Finally, in September 2011, six Member States supported the creation of an “LGBT project” within the Council of Europe.
This series of documents and decisions has firmly engaged the Council of Europe in the promotion of LGBT rights. Nevertheless, on the question of the acknowledgment of unions between people of the same sex, the debate is far from over. On one hand, the Court declared clearly that the European Convention on Human Rights does not require a redefinition of marriage to include same-sex relationships. On the other hand, it seems to be building a right to “legal recognition” for same-sex couples.
On Same-Sex Marriage: No Right
In the last few years, eleven European States have redefined marriage as a genderless institution: the Netherlands, Belgium, Spain, Sweden, Norway, Portugal, Iceland, Denmark, France, England, Wales, and Luxembourg. Thirteen others have shored up the definition of marriage in their constitutions as the union of husband and wife: Belarus, Bulgaria, Croatia, Hungary, Latvia, Lithuania, Moldova, Montenegro, Poland, Serbia, Slovakia, Ukraine, and currently Macedonia.
The most recent constitutional amendments are aimed at preventing the redefinition of marriage by way of either legislation or jurisprudence. This is why they define marriage as “a unique union between a man and a woman” (Slovakia) instead of simply guaranteeing “to men and women” the right to marry and found a family. This latter formulation allowed the Spanish Constitutional Court, following the ECHR indication in Schalk and Kopf, to rule that the phrase “men and women” does not imply that marriage must be defined exclusively to opposite-sex pairs.
When reading the 2010 Schalk and Kopf judgment, it is tempting to conclude that the Court was paving the way to the establishment of a right to marriage for same-sex couples. The Court applied Article Twelve (which guarantees “men and women” the right to marry) to same-sex couples because it “might be interpreted so as not to exclude the marriage between two men or two women.” However, in light of the context and the intention of the authors of the Convention, the Court recognized that this article had to be interpreted as guaranteeing only to “man and woman” the right to marry and found a family. Therefore, “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.” The Court added “that it must not rush to substitute its own judgment in place of that of the national authorities,” since member countries are “still free . . . to restrict access to marriage to different-sex couples.”
The wording of the Court in 2010 implied that “its own judgment” would have been to extend the guarantee of marriage rights offered by Article Twelve to all couples, irrespective of sexual complementarity. This Schalk and Kopf judgment was a kind of promise, setting down the grounds for the subsequent evolution of jurisprudence.
But since 2010, the increasing divergence between European countries has led the Court to depart from the evolutionary interpretation of the Convention in recognizing the absence of any right to same-sex marriage under the Convention.
In a landmark case Hämäläinen v. Finland, the ECHR, sitting as a Grand Chamber, ruled very clearly in July 2014 that neither Article Eight protecting private and family life, nor Article Twelve guaranteeing the right to marry, can be understood “as imposing an obligation on Contracting States to grant same-sex couples access to marriage.” The Court clarified that the right to marry and to found a family “enshrines the traditional concept of marriage as being between a man and a woman.” Such clear statement tends to end the debate for now and for the future.
Two authoritative bodies of the Council of Europe—the Committee of Ministers and the Venice Commission—recently adopted similar positions. They decided that the constitutionalization in Croatia, Macedonia, and Hungary of the definition of marriage as exclusively a monogamous union of husband and wife, and the subsequent non-recognition of same-sex couples as marriages, do not violate European norms.
It seems clear that the norms of the Council of Europe do not require member states to grant same-sex couples access to marriage nor prevent them from defining marriage as exclusively the union of one man and one woman. However, there is another question that must be answered: is there a positive obligation for member states to provide another form of legal recognition to same-sex couples?
Do Same-Sex Couples Have a Right to Civil Unions?
The ability of two individuals of any sex to enter into a civil partnership is often presented as an alternative to access to marriage. Under current European law, there is no right to legal recognition of same-sex couples. However, since 1989, twenty-three of the Council’s forty-seven member states have adopted a legal framework for same-sex civil unions, and two more are in the process of doing so.
It should be noted that the movement toward civil unions is not only driven by those seeking social recognition of homosexuality, but also by those who question the institutional and social dimension of marriage itself in favor of a more private mode of engagement. In France, 95 percent of civil partnerships are by heterosexual couples, and two civil unions are celebrated for every three marriages.
In the Schalk and Kopf ruling, the Court assessed the growing European consensus toward legal recognition of same-sex couples, but remarked that
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.
In the 2013 case Vallianatos and others v Greece, the Grand Chamber of the ECHR ruled that it was discriminatory for Greek law to limit civil unions to heterosexual couples. The Grand Chamber did not take this opportunity to declare a conventional right to legal recognition of same-sex partnerships. However, the Court called on European legislators, when legislating on family, to choose measures that “take into account developments in society . . . including the fact that there is not just one way or one choice when it comes to leading one’s family or private life.”
At this stage, the Court invites—but does not require—member states to legally recognize same-sex unions and perhaps even marriages. The same is true of the Committee of Ministers Recommendation CM (2010) and the Parliamentary Assembly of the Council of Europe Resolution 1728 (2010).
The Challenges to Come
In the coming months, the number of member states that legally recognize same-sex couples will reach a majority within the Council of Europe. This may have a decisive impact on the forthcoming ECHR’s rulings in three new cases currently pending (Oliari and A. v. Italy, Felicetti and others v. Italy, and Francesca Orlandi and others v. Italy). In those cases, several same-sex couples challenge the impossibility of obtaining legal recognition of their relationship through marriage or any other legal means. They invoke Articles Eight, Twelve, and Fourteen of the European Convention on Human Rights.
The Court will certainly not support a right to marriage, but it may build on its Vallianatos judgment. Under that judgment, the interest of homosexual couples “to have their relationship legally recognised” was considered an element of their private and family life, which is protected by Article Eight of the Convention. Even if Article Eight may not be interpreted as containing, per se, a positive obligation to provide for such recognition, this refusal may be found discriminatory in regard to the possibility afforded to different-sex couples to have their relationship recognized through marriage. The Court could rely on its findings in Vallianatos, where it judged that “same-sex couples are just as capable as different-sex couples of entering into stable committed relationships,” and that they have “the same needs in terms of mutual support and assistance as different-sex couples.”
If the court rules that Italy is being discriminatory by not giving legal recognition to same-sex couples, Italy would not necessarily have to redefine marriage, but it would have to create a legal framework for same-sex civil unions. Such a ruling would oblige all European countries that do not provide for same-sex marriage to establish civil unions that would be open to same-sex couples.
Of course, this will lead to the question of the justification for the difference between marriage and civil unions. In Schalk and Kopf, Court was “not convinced” by the argument that the rights attached to marriage and civil partnership should be equivalent, noting that “States enjoy a certain margin of appreciation as regards the exact status conferred by alternative means of recognition.”
But the difference in rights and obligations would have to manifest the difference of purpose between marriage and civil partnership. The purpose of marriage is foundation of a family (Sheffield and Horsham v. UK), while the purpose of a civil partnership is the organization of private life, corresponding approximately to the difference between, respectively, Articles Twelve and Eight of the Convention on Human Rights.
In general, it is clear that the development of civil partnership reflects a change in attitudes that, to the detriment of marriage, tends to prefer a contractual and easily revocable mode of union. It is the expression of a society that does not regard the family but the individual as the natural and fundamental unit of society. Civil partnerships, even if they are limited to heterosexual couples, have just as powerful a negative impact on society as the redefinition of marriage. Their existence demonstrates that Europe is accepting a brittle, individualistic, and easily dissolved mode of union that is not oriented toward the foundation of a family.