Last week, the European court of human rights ruled unanimously that there was no obligation on states to recognise same-sex marriage. At least, not yet. Because hidden within the ruling are two significant findings that make it almost certain that one day the court will rule in favour of a right to have same-sex relationships – including marriages – recognised in law. The case is also notable for a bizarre intervention by the UK government, arguing against a right – to recognition of civil partnerships – that it had itself introduced at home.
Two Austrians, a Mr Schalk and a Mr Kopf, argued that the right to marry, set out in the European convention on human rights, requires states to recognise same-sex marriage. The court rejected that argument unanimously, stating instead that the right of men and women to marry is subject to national laws. The court relied on the fact that only six of the 47 European states recognise same-sex marriage (in fact, seven countries now do, with Iceland the latest). In this approach the court showed once more that on issues it calls “morality” it normally follows states, rather than leads them, an approach which those who accuse the court of “interfering” too much would do well to consider.
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.
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