Today a Chamber of the European Court of Human Rights delivered its judgment in Schalk and Kopf v. Austria, no. 30141/04. The applicants alleged a violation of Art. 12, and Art. 8 combined with Art. 14, on the basis that Austrian law did not allow them, as a same-sex couple, to contract marriage. Notably, the applicants did not just claim that Austria denied them some specific legal rights and privileges of a married couple, by refusing to recognize their relationship at all – something that the European Court has regarded as discriminatory since its 2003 judgment in Karner v. Austria, and unjustifiable merely for the sake of protecting an abstract notion of the traditional family. Rather, their claim focused solely on their inability to enter into marriage as such. In other words, they argued that the definition of marriage as a union of a man and a woman was as such discriminatory. (For more background, see this excellent post by Tobias Thienel on the oral hearings in the case).The Chamber rejected the applicants’ arguments.
The applicants first based their claim on Art. 12, arguing that the Court should interpret it in an evolving manner so as to now require the legal recognition of same-sex marriage (see here for more on evolutionary interpretation). The Court refused to do so, finding that (at least for the time being) the matter was left to the margin of appreciation of contracting states (paras. 54-64):
54. The Court notes that Article 12 grants the right to marry to “men and women”. The French version provides « l’homme et la femme ont le droit de se marier ». Furthermore, Article 12 grants the right to found a family.
55. The applicants argued that the wording did not necessarily imply that a man could only marry a woman and vice versa. The Court observes that, looked at in isolation, the wording of Article 12 might be interpreted so as not to exclude the marriage between two men or two women. 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.
56. As regards the connection between the right to marry and the right to found a family, the Court has already held that the inability of any couple to conceive or parent a child cannot be regarded as per se removing the right to marry (Christine Goodwin, cited above, § 98). However, this finding does not allow any conclusion regarding the issue of same-sex marriage.
57. In any case, the applicants did not rely mainly on the textual interpretation of Article 12. In essence they relied on the Court’s case-law according to which the Convention is a living instrument which is to be interpreted in present-day conditions (see E.B. v. France [GC], no. 43546/02, § 92, ECHR 2008-…, and Christine Goodwin, cited above, §§ 74-75). In the applicants’ contention Article 12 should in present-day conditions be read as granting same-sex couples access to marriage or, in other words, as obliging member States to provide for such access in their national laws.
58. The Court is not persuaded by the applicants’ argument. Although, as it noted in Christine Goodwin, the institution of marriage has undergone major social changes since the adoption of the Convention, the Court notes that there is no European consensus regarding same-sex marriage. At present no more than six out of forty-seven Convention States allow same-sex marriage (see paragraph 27 above).
59. As the respondent Government as well as the third-party Government have rightly pointed out, the present case has to be distinguished from Christine Goodwin. In that case (cited above, § 103) the Court perceived a convergence of standards regarding marriage of transsexuals in their assigned gender. Moreover, Christine Goodwin is concerned with marriage of partners who are of different gender, if gender is defined not by purely biological criteria but by taking other factors including gender reassignment of one of the partners into account.
60. Turning to the comparison between Article 12 of the Convention and Article 9 of the Charter of Fundamental Rights of the European Union (the Charter), the Court has already noted that the latter has deliberately dropped the reference to men and women (see Christine Goodwin, cited above, § 100). The commentary to the Charter, which became legally binding in December 2009, confirms that Article 9 is meant to be broader in scope than the corresponding articles in other human rights instruments (see paragraph 25 above). At the same time the reference to domestic law reflects the diversity of national regulations, which range from allowing same-sex marriage to explicitly forbidding it. By referring to national law, Article 9 of the Charter leaves the decision whether or not to allow same-sex marriage to the States. In the words of the commentary: “… it may be argued that there is no obstacle to recognize same-sex relationships in the context of marriage. There is however, no explicit requirement that domestic laws should facilitate such marriages.”
61. Regard being had to Article 9 of the Charter, therefore, the Court 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.
62. In that connection the Court observes that marriage has deep-rooted social and cultural connotations which may differ largely from one society to another. The Court reiterates that it must not rush to substitute its own judgment in place of that of the national authorities, who are best placed to assess and respond to the needs of society (see B. and L. v. the United Kingdom, cited above, § 36).
63. In conclusion, the Court finds that Article 12 of the Convention does not impose an obligation on the respondent Government to grant a same-sex couple like the applicants access to marriage.
64. Consequently, there has been no violation of Article 12 of the Convention.
The argument then moved to equality. As the readers are aware, discrimination cases before the European Court proceed in two stages: (1) was there differential treatment between people in similar situations; and if so (2) was that difference in treatment objectively and reasonably justified, i.e. (a) did it pursue a legitimate aim, and if so (b) was it proportionate to that aim. Likewise, because the prohibition of discrimination in Art. 14 is accessory in nature, it applies only when the the complaint falls within the ambit of some other Convention provision – here Art. 8.
Importantly, the Court has now held not only that same-sex relationships are to be regarded as a part of ‘private life’ within the meaning of Art. 8, but also as part of ‘family life’, due to the evolving nature of family relationships in Europe (paras. 92-95). It hence found that same-sex couples and opposite-sex couples were in a comparable situation (para. 99), and that the accordingly any differential treatment had to be objectively and reasonably justified so as not to constitute discrimination. The applicants alleged three types of such treatment – first, their inability as such to enter into marriage, second, Austria’s laxity in providing legal recognition to same-sex couples, and finally, certain differences in Austrian law between the treatment of marriage and registered partnerships.
As for the first, the Court thought that this argument was essentially the same as the one already considered under Art. 12, and held that (para. 101):
101. Insofar as the applicants appear to contend that, if not included in Article 12, the right to marry might be derived from Article 14 taken in conjunction with Article 8, the Court is unable to share their view. It reiterates that the Convention is to be read as a whole and its Articles should therefore be construed in harmony with one another (see Johnston and Others, cited above, § 57). Having regard to the conclusion reached above, namely that Article 12 does not impose an obligation on Contracting States to grant same-sex couples access to marriage, Article 14 taken in conjunction with Article 8, a provision of more general purpose and scope, cannot be interpreted as imposing such an obligation either.
As for the second, the Court considered that (paras. 103-106):
103. The Court reiterates in this connection that in proceedings originating in an individual application it has to confine itself, as far as possible, to an examination of the concrete case before it (see F. v. Switzerland, cited above, § 31). Given that at present it is open to the applicants to enter into a registered partnership, the Court is not called upon to examine whether the lack of any means of legal recognition for same-sex couples would constitute a violation of Article 14 taken in conjunction with Article 8 if it still obtained today.
104. What remains to be examined in the circumstances of the present case is whether the respondent State should have provided the applicants with an alternative means of legal recognition of their partnership any earlier than it did.
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).
106. The Austrian Registered Partnership Act, which entered into force on 1 January 2010, reflects the evolution described above and is thus part of the emerging European consensus. Though not in the vanguard, the Austrian legislator cannot be reproached for not having introduced the Registered Partnership Act any earlier (see, mutatis mutandis, Petrovic, cited above, § 41).
Finally, as for the differences between marriage and registered partnerships, the Court held that (paras. 108 & 109):
108. The Court starts from its findings above, that States are still free, under Article 12 of the Convention as well as under Article 14 taken in conjunction with Article 8, to restrict access to marriage to different-sex couples. Nevertheless the applicants appear to argue that if a State chooses to provide same-sex couples with an alternative means of recognition, it is obliged to confer a status on them which – though carrying a different name – corresponds to marriage in each and every respect. The Court is not convinced by that argument. It considers on the contrary that States enjoy a certain margin of appreciation as regards the exact status conferred by alternative means of recognition.
109. The Court observes that the Registered Partnership Act gives the applicants a possibility to obtain a legal status equal or similar to marriage in many respects (see paragraphs 18-23 above). While there are only slight differences in respect of material consequences, some substantial differences remain in respect of parental rights. However, this corresponds on the whole to the trend in other member States (see paragraphs 32-33 above). Moreover, the Court is not called upon in the present case to examine each and every one of these differences in detail. For instance, as the applicants have not claimed that they are directly affected by the remaining restrictions concerning artificial insemination or adoption, it would go beyond the scope of the present application to examine whether these differences are justified. On the whole, the Court does not see any indication that the respondent State exceeded its margin of appreciation in its choice of rights and obligations conferred by registered partnership.
Thus, though the Court generally regards differences in treatment between same-sex couples and opposite-sex couples to be impermissible, it leaves open the possibility that some of these differences can be justified, leaving also these particular issues for future concrete cases.
While the Chamber was unanimous with regard to Art. 12, its finding of no violation of Arts. 8 + 14 was the consequence of a 4 to 3 split. Judges Rozakis, Speilmann and Jebens dissented, finding that the lack of legal recognition in Austrian law until 2010 (rather than the denial of a particular legal rights) did as such amount to a violation. On the other hand, Judge Malinverni gave a concurring opinion joined by Judge Kovler, in which he considered that under normal rules of treaty interpretation Art. 12 could never be regarded as protecting same-sex couples, as its text simply does not permit such an interpretation.
In short, the case is positively fascinating. The most fundamental legal issue that it raises is whether the purely moral attitudes of a majority can ever justify the differential treatment of a minority. And if we accept that morality alone can justify the denial of legal rights, or differences in apportioning them, then we come to the question as to how a court can objectivize or legalize such a moral judgment.
The method that the Court uses, and that I personally find appealing, is to refrain as much as possible from moralizing on its own, but to refer to a moral consensus among the 47 European states, and to leave them a margin of appreciation when such a consensus is lacking. Hence, because it relies on this deferential comparative method, the Court generally tends to follow, rather than lead. Once a consensus emerges, it will probably impose it on the recalcitrant members of its interpretative community, as it has done e.g. in Dudgeon, with respect to the criminalization of homosexuality. But until that happens, it will leave the democratic processes in diverse European societies to come up with their own solutions.
Thus, contrary to the impression of many in say the American judiciary or academia, the European Court is far less ‘activist’ than its US counterparts, such as e.g. the Supreme Courts of Massachusetts and California, which interpreted their state constitutions’ equality guarantees as requiring the opening of marriage to same sex couples. Because the moral views of judges might be out of step with those of the majority of people in a democracy, such judgments can produce an intense public backlash and can thus ultimately prove to be counterproductive. For example, the Californian judgment was thus overturned by a constitutional referendum. The result of this referendum is now the object of a closely-watched, high-profile litigation in a US federal District Court (Prop 8 trial), and may well go all the way up to the ideologically extremely divided US Supreme Court, causing a large amount of political fallout no matter how the courts rule.
Finally, it is certainly possible that the parties will appeal this judgment to the Grand Chamber. Even if the Grand Chamber agrees to take the case, I find it unlikely that it would overturn the unanimous position of the Chamber that marriage as such does not have to be opened to same-sex couples (at least until such a European consensus emerges). While only 6 (now actually 7, recently inclusive of Iceland) out of 47 states recognize same-sex marriages, it is doubtful that this ruling will be departed from. Some of the Chamber’s findings with respect to discrimination, however, may be open to more doubt, particularly as to the question of the lack of any legal recognition of same-sex couples (as, e.g., in countries like Russia or Serbia), and the as-of-yet unspecified permissible differences between marriages and registered partnerships.