Austrian marriage appeal: Schalk and Kopf v. Austria

[marshlander]

I don't know if anyone has been following the story of the gay couple who have appealed to the European Court for permission to marry in their native Austria. I only heard about it at a lecture I attended on Tuesday evening. The case has been brewing for some time and our government has made representation to the court for the appeal to be turned down as I think is explained in the following from Hansard.

11.13 am

Lord Lester of Herne Hill asked Her Majesty’s Government:

Why they are intervening before the European Court of Human Rights in the case of Horst Schalk and Johann Kopf v Austria (Application No. 30141/04) to contend that same-sex relationships fall outside the ambit of family life for the purposes of Article 8 of the European Convention on Human Rights.

The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Hunt of Kings Heath): My Lords, the Government have intervened in the case of Schalk and Kopf v Austria primarily to support the proposition that Article 12 of the European Convention on Human Rights does not require same-sex couples to be allowed to marry. The noble Lord has raised an important technical issue about our observations in this case, for which I am grateful and upon which I am reflecting in consultation with my ministerial colleagues.

Lord Lester of Herne Hill: My Lords, I am grateful to hear that Ministers are considering the matter further. I have put the observations in the Library, so that those who want to can see exactly what the Government have said. It is not correct that they have confined their observations only to the right to marry. They have also said that the court should not develop its case law so that same-sex partners living in an enduring family relationship are protected by Articles 8 and 14 of the convention against sexual orientation discrimination in the enjoyment of the fundamental right to respect for family life. I have two questions. First, is that the Government’s aim because, if so, it seems bizarre? Secondly, in the light of our law’s recognition of civil partnership and recognition that for the purposes of adoption a couple includes two people of the same sex living as partners in an enduring family relationship, why on earth do the Government negatively seek to persuade the Strasbourg court that

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the convention does not require the creation of legal recognition of such relationships for same-sex couples, who cannot marry?

Lord Hunt of Kings Heath: My Lords, the noble Lord raises important matters and I am sure that all noble Lords will wish to see the memorandum he has placed in the Library. The Government are very proud of the legislation introducing civil partnerships and we strongly encourage other countries to do likewise. However, we do not think it appropriate for other countries—many of which have very different social attitudes towards marriage and relationships—to be compelled to introduce similar systems. That was the principal aim of our intervention. We would be concerned if an interpretation suggested that Article 8 compelled legal registration of any family relationship. However, I assure the noble Lord that we are considering this point very carefully.

The case was heard yesterday and a decision is being considered. The session can be seen here. Fascinating stuff although I don't pretend to understand everything that was going on.

[fredv3b]

Fascinating. That HMG intervened to argue that the Court should not construe Article 12 (the right to marry) as the right to gay marriage, is I think reasonable even if I wish it were not so for selfish reasons. However arguing against right right to private and family life and against the protection against discrimination against gay couples, is effectively saying that HMG believes gay couples should have no rights as couples (although obviously still as individuals) under the convention. Outrageous.

Many many thanks Marshy for pointing this out.

[princealbertofb]

Any news on the case???

[fredv3b]

No. Judgements usually take some time from that court.

[marshlander]

The judgement has been made public much sooner than I was expecting and I suppose I don't need to say what it is :frown:

However, some interesting points have been made and doors have been left open for further interpretation. Here are a few quotes from this newspaper's article (I shan't say which one, the spelling should give it away ):

article 9 of the Charter, leaves the decision to the states whether or not to recognise same-sex marriages (without oblgiing them to do so). On the basis of this, the European Court of Human Rights concluded on article 12 that it

"would no longer consider that the right to marry enshrined in article 12 must in all circumstances be limited to marriage between two persons of the opposite sex. Consequently, it cannot be said that article 12 is inapplicable to the applicants' complaint. However, 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." (para. 61)

The door is thus left open a little bit, which basically affirms that those countries who do recognise and allow for same-sex marriages do so within the limits of human rights. This did not help the applicants of course. The Court went on to re-affirm that marriage has deep roots in societies and differs from one place to another. Considering this, it found it should not "rush to substitute its own judgment in the place of that of national authorities." To summarise, article ECHR 12 does not oblige states to allow same-sex couples to marry.

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.

The court then went on to look at the case from a non-discrimination angle in which it reiterated that differences made by the state based on sexual orientation required a serious justification. It also held, innovatively in its jurisprudence, that

"same-sex couples are just as capable as different-sex couples of entering into stable committed relationships. Consequently, they are in a relevantly similar situation to a different-sex couple as regards their need for legal recognition and protection of their relationship." (para. 99).

Nevertheless, it went on to hold that since Austria had introduced a same-sex partnership it would not look at whether a total lack of legal ecognition of same-sex couples would violate the convention, but only whether Austria had been obliged to offer any alternative way of legal recognition previous to the new partnership law. The court held that Austria was not obliged to do so, with an explicit reference to the fact that there is "an emerging consensus towards legal recognition of same-sex couples" (para. 105) and that this was a rapidly developing tendency in the past ten years, but that currently no consensus existed yet (which it described as: there is no majority of states doing this yet). Consequently, states should enjoy a wide margin of appreciation. This margin also extended to the precise way in which alternatives (to marriage) of legal recognation fell within that margin. Thus the court concluded that also on this count the convention was not violated.

Thanks to The Guardian for this news ... but you knew that already.

[juk]

I kind of think this is on the positive side because I know that laws and rights like these take some time before they change, usually with the slow 'chipping away' effect that seems to be happening here.

In reality though it does really bug me that whole marriage thing is often seen as (heterosexual) human nature, as something humans are programmed to do. I have no desire to marry a guy but those who want to ought to be able to and to enjoy the same rights etc as straight marriages.

[fredv3b]

As I understand it the court has implied (but not said specifically) that it ruled in favour of Austria because of their recently enacted civil unions i.e. that they would view a complete lack of recognition for same-sex couples as being against the convention. Given that many countries that have signed the convention do not recognise same-sex couples at all, this is good news.

[marshlander]

I agree, Fred. While I may be impatient for equality it is clear that only a minority of EU member states have opted for same-sex marriages. Others have partnership agreements in place while others are still holding out against making it available. This is a small step in the right direction, but a significant one.