The (Gay) Elephant in the Room: Is there a Positive Obligation to Legally Recognise Same-Sex Unions after Fedotova v. Russia?

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On the 13th of July, the European Court of Human Rights (Third Section) decided the case Fedotova v. Russia, nos. 40792/10 etc, holding that the Russian State violated Art. 8 ECHR for not having provided same-sex couples with the opportunity to have their relationships formally acknowledged in form of a marriage, or in any other form. The judgment, which has already been viewed as “historic” (here), represents an important and welcome development in the saga of legal recognition of same-sex unions in the ECHR. Where we left off, in Oliari v. Italy (2015), the Court left unclear whether Art. 8 imposed a general positive obligation upon all States to adopt a legal framework recognising same-sex unions, in the form of marriage or in any other equivalent form. In Fedotova v. Russia, the Court finally addressed the elephant in the room and clearly held that a State lacking the opportunity to have same-sex relationships legally acknowledged is in violation of Art. 8.

What the case was all about

Three same-sex couples wished to get married in Russia. Their requests were inevitably rejected on the ground that the Russian Family Code (and also endorsed by the Russian Constitutional Court) stated that marriage is a “voluntary union between a man and a woman”. They then brought the claim to Strasbourg complaining that it was impossible for them to enter marriage and thus obtain legal protection for their relationships.

As it was communicated by the Court, it appears that the applicants relied on Art. 8 alone and on Art. 14 together with Art. 8, claiming they had been discriminated on grounds of sexual orientation. It is not clear whether the absence of a formal complaint under the right to marry (Art. 12) was intentional or a consequence of the Court’s rephrasing of the applications (one of the couples, Ms. Fedotova and Ms. Shipitko, indeed raised Art. 12 in domestic proceedings).

Notwithstanding, the substance of the claim relates to the right to obtain recognition through a formal legal framework, be it marriage or other forms (civil unions, registered partnerships, etc). Although the three couples wished to marry, it needs to be clarified that they did not ask the Court to rule on the possibility to derive access to marriage from Art. 8 or Art. 14. This possibility has been already ruled out in Schalk and Kopf v. Austria, where the Court held that the only way to impose such an obligation upon States is through Art. 12 (see para. 101). Neither did they seek the extension of certain legal rights connected to the status of partners, which the Court already required to be extended in numerous other cases (see e.g. Karner v. Austria, Kozak v. Poland, Pajic v. Croatia, Taddeucci and McCall v. Italy). The core of the applicants’ complaint was the need to obtain a form of global legal recognition, if not marriage at least in a “lesser form”, in order to resolve the legal vacuum causing a lack of protection for same-sex couples.

The existence of a positive obligation in previous case-law

The question of the existence of such a positive obligation to provide a form of global recognition to same-sex couples was first raised in Schalk and Kopf v. Austria (2010), where the applicants complained that they had no opportunity in Austria to acquire legal protection prior to the adoption of the Registered Partnerships Act. On that occasion, the Court dodged the legal bullet holding that States parties enjoyed a wide margin of appreciation as regards to “the timing of the introduction of legislative changes” (para. 105) in the absence of established consensus.

While no positive obligation arose after Schalk and Kopf, the following case Vallianatos v. Greece (2013) raised more doubts. The Greek State was indeed found in breach of Arts. 8 and 14 for having introduced civil partnerships only for heterosexual couples while excluding same-sex unions. The Court, however, was careful to delimit the scope of the judgment in para. 75 to avoid implying any general conclusion:

The applicants’ complaint does not relate in the abstract to a general obligation on the Greek State to provide for a form of legal recognition in domestic law for same-sex relationships. In the instant case the applicants complain that Law no. 3719/2008 provides for civil unions for different-sex couples only, thereby automatically excluding same-sex couples from its scope. In other words, the applicants’ complaint is not that the Greek State failed to comply with any positive obligation which might be imposed on it by the Convention, but that it introduced a distinction, by virtue of Law no. 3719/2008, which in their view discriminates against them.

Then came the seminal judgment Oliari v. Italy (2015). In that case, the ECtHR found Italy in breach of Art. 8 for not providing any form of legal recognition to homosexual relationships. The judgment was very important for the Italian legal landscape, as it led to the adoption of Law No. 76/2016 which finally introduced civil unions in the country. Nevertheless, as it was suggested by concurring opinions of judges Mahoney, Tsotsoria and Vehabović, the judgment was crafted in such a way to suggest that its findings were confined to the peculiar situation of the Italian Republic. In assessing the violation of Art. 8 ECHR, the Court of Strasbourg relied in fact on the existence of multiple recommendations by the Constitutional Court (judgment No. 138/2010) calling for a juridical recognition that were unheeded by the Italian Parliament and stressed the inconsistency between social acceptance of same-sex couples in Italy and the status of the law. After Oliari much debate sparked (for example here, here, and here) on whether the judgment imposed a general positive obligation and could have consequences on other contracting States that did not legally recognise same-sex relationships.

The Court had the chance to respond in Taddeucci and McCall v. Italy (2016), where a same-sex couple was denied a resident permit for family reunification on the ground that they were not married, but avoided the question (see para. 94). The answer came eventually in the Fedotova v. Russia.

Is there a positive obligation to recognition and can a State escape it?

The Court found Russia to be under a positive obligation to acknowledge same-sex relationships. The relevant passage is para. 50, in which the Court admitted it had to consider whether Russia “failed to comply with the positive obligation to ensure respect for the applicants private and family life, in particular through the provision of a legal framework allowing them to have their relationship recognised and protected in domestic law”. The existence of such an obligation, which is clearly stated for the first time, is not widely discussed in the judgment and the Court is very concise about it. In particular, it is not clear what triggers the obligation, since the Court said in para. 49 that Art. 8 does not explicitly impose it, however it required “the need for striking a fair balance between the competing interests of same-sex couples and of the community as a whole”. It thus seems that it is the couple’s aspiration to be recognised (the “individual interests”) that must be weighed against the community interest and thus triggers the obligation. In other words, the starting point is that the positive obligation exists depending on the need to be legally acknowledged, and the State must find a convincing and weighty public interest to depart from it as a result of the “fair balance” process, according to the same approach enshrined by Art. 8, para. 2 ECHR.

The fact that the Court found the positive obligation to be existent is surprising, giving that the circumstances of the case were very different, if not antithetical, from that of Oliari. In Fedotova, in fact, not only was not present any constitutional recommendation to the legislative, but the Russian Constitutional Court ruled against the existence of any constitutional or international obligation for the Russian State to recognise same-sex unions (see judgment Mr. E. Murzin, 2006, decision no. 496-O, para. 2.2.). Moreover, differently from the Italian situation, the Russian government produced evidence that there was a growing popular sentiment against the acceptance of same-sex unions in the country (para. 35).

The Court noted that the need of legal recognition arises from the several practical disadvantages that would otherwise affect same-sex couples (in detail, see para. 51) and from the sharp contrast between the social reality and the legal situation. The perception of the “social reality” is not subject to the acceptance of the couple in the social context, as one could have inferred from Oliari, but it is exclusively linked to the existence of the “committed relationship based on mutual affection” (para. 51). In this regard, the starting point of the Court was that “same-sex couples are not legally prevented from living together in couples as families” (ibid.). Unfortunately, this seems to suggest that social reality could be hampered if same-sex couples were prevented to live together.

Even though the State can in principle escape the positive obligation by way of the fair balance with the community interest, after this judgment it might be difficult to try and identify legitimate reasons that could successfully outweigh the need of protection of homosexual couples. In this case, the Court refused three different public interests put forward by the Russian government. First, it did not accept the argument that the majority of Russian citizens disapproved of same sex-unions, owing to the principle that “the exercise of Convention rights by a minority group” cannot be “made conditional on its being accepted by the majority” (Alekseyev v. Russia, para. 81; Bayev and Others v. Russia, para. 70). As to the protection of minors from display of homosexuality, the Court simply deemed this justification to be “not relevant to the present case” (para. 53). Lastly, it considered that the protection of traditional marriage was not at real risk, since recognising same-sex unions would not prevent different-sex couples from entering marriage or enjoying its benefits. One could wonder whether there is any reason left for a contracting State to justify the absence of a legal framework that acknowledges and protects same-sex couples.

Another aspect to note is that States cannot rely on the margin of appreciation to avoid fulfilling the positive obligation. Even though the Court admitted that the margin of appreciation must be taken into account to assess if a positive obligation under Art. 8 exists (para. 47), in the judgment it clearly affirms that the absence of a form of legal recognition automatically exceeds the margin of appreciation (para. 56). This is in contrast with the previous Schalk and Kopf, where the Court held that the absence of consensus allowed States to decide when to introduce a form of recognition. In this judgment, consensus is not evoked, even though it might be presumed (30 out of 47 member States of the Council of Europe recognise same-sex unions). Contracting States would only retain their discretion as to the choice of the “most appropriate form of registration taking into account [the] specific social and cultural context” (para. 56), deciding whether to adopt equal marriage or alternative forms of partnerships.

What is left unsaid

Two points remain in the background of this judgment. The first one is the role of the anti-majoritarian argument used to deny legitimacy to the popular sentiment against the acceptance of same-sex unions. The Court rightly pointed out that the moral views of the majority cannot be used to deny sexual minorities access to forms of legal recognition. This argument draws inspiration from queer readings of the ECHR that reflect on the underlying heteronormative (i.e. exclusively heterosexual) conception of most of the rights of the Convention and how to subvert this dynamic (more here and here). While this anti-majoritarian logic is plain and simple when applied to the right to enter civil partnerships/unions, it is not clear (legally speaking, at least) why it is not consistently used by the ECtHR in regard to the right to marry. One can legitimately wonder if the consensus-based approach used from Schalk and Kopf onwards, i.e. the appraisal of the view of the majority, is still feasible, given the fact that not only other Supreme Courts (see the US Supreme Court in Obergefell or the South-African Constitutional Court in Fourie), but also other international conventional bodies, like the IACtHR (see here), departed from it. Another possibility is that, as suggested by Johnson and Falcetta, the ECtHR has eventually fully endorsed the “heterosexual nature” of Art. 12, thus rendering the provision practically and effectively inapplicable to same-sex unions (see here). This could also explain why in Fedotova a claim under Art. 12 is not present at all. Either the applicants did not find it a suitable card to play, or the Court omitted it when determining the substance of the application. Either way, the picture is not comforting.

The second point is the relevance of the principle of non-discrimination (Art. 14). The applicants raised it; the Court deemed it not necessary given the fact that it already found the violation of Art. 8. The fact that the alleged discrimination does not need to be examined if it is not “a fundamental aspect of the case” is a well-established principle of the Court’s case-law since Dudgeon v. UK (1981, para. 67). Regardless, it is difficult to assert that in a country where same-sex persons are repeatedly stigmatized and marginalized, where even the Constitutional Court endorsed the ban on “homosexual propaganda”, the absence of a form of legal recognition does not serve a strong discriminatory purpose.

Conclusions

If the question was left open in the previous case-law, in Fedotova the ECtHR clearly affirmed the existence of a positive obligation deriving from Art. 8 to recognise same-sex unions, whether through marriage or other forms of recognition. Some points still remain in need of further clarification, for example the role of margin of appreciation and the existence of consensus, as well as the limits and extension of the positive obligation and its relevance for other contracting States. The judgment could come before the Grand Chamber, as the Russian Federation will not welcome it with approval, to say the least (see here on possible Russian reactions and how the judgment could sit within Russian legal order).

The practical consequence of this judgment for other contracting States that currently do not afford legal recognition to same-sex couples are unpredictable. Will they follow the decision, too? The use of strategic litigation to challenge legislative status quo that ignores same-sex unions is already increasing. Some cases are pending before the ECtHR against Poland (cases nos. 18822/18, 11454/17, 11560/19, 131/15, 45301/19, 58828/12, 78030/14, 23669/16) and Romania (no. 5926/20, S.K.K. and A.C.G. v. Romania). Perhaps other applications will follow. Certainly, this judgment will be a relevant and decisive term of comparison.

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Clare Ryan says

July 25, 2021

Thank you for this insightful analysis of the Fedotova judgment and the ways that Russia may ignore or resist it.

Readers interested in how ECtHR case law on same-sex relationships and other LGBT rights have evolved over time may be interested in my coauthored forthcoming paper: “LGBT Rights as Mega-politics: Litigating before the ECtHR,” https://ssrn.com/abstract=3867604

Paul says

July 26, 2021

Thank you for very interesting post.

Bearing in mind this novel approach, how would the ECHR, in your opinion, approach possible obligation to legally recognize Muslim polygamous marriages? It seems that all major arguments put forward by the ECHR could apply equally in respect of recognition of such marriages.

Giulio Fedele says

July 27, 2021

Thanks, Paul, for the insight and the opportunity to discuss. Indeed, if one looks at the protection of Art. 8 for other family models then the standard heterosexual one, it is difficult to leave polygamous relationships out of it.

I remember one post here on the EJIL!: Talk! that thought that Vallianatos v. Greece was the first step in the process of dilution of the notion of family (here: https://www.ejiltalk.org/the-dilution-of-the-family-in-human-rights-comments-on-vallianatos-and-other-echr-cases-on-family-life/). It was just 2014, now we here in 2021 and we can look at it with hindsight.

Two things come to mind: first, the ECtHR always said that States should respect the multiple ways one could choose to live and lead his/her family life (see e.g. Beizaras and Levickas v. Lituania) but in practice this principle remains not really effective (just think that maybe same-sex couples don't want to be in a "lesser form" of marriage, like a civil partnership, but maybe they want the whole thing -- which means equality to them. The Court for now doesn't care about this, though). Even polygamy then could be a way to lead one's family life that States should respect and protect too!

I am no expert in this particular field but I recalled that the ECtHR accepted that polygamous family is a "family" for the application of Art. 8 (Serife Yigit v. Turkey, 2010), so the question of applying Fedotova to this case is more than legitimate.

The starting point is that, probably, the Court will not easily affirm that States should adopt a form of legal recognition for polygamous relationships (would it be too much to bear? We struggled to get it for same-sex couple..). So maybe, it will use the para. 2 of Art. 8 to justify the existence of such a restriction (the absence of legal recogntion) on the grounds of protection of morals or other public interests. Is it fair? I do not think so, as this topic raises the argument already raised by Milanovic in its post on Obergefell (https://www.ejiltalk.org/living-instruments-judicial-impotence-and-the-trajectories-of-gay-rights-in-europe-and-in-the-united-states/): can the moral views of the majority alone justify restrictions for the rights of minorities?

This is why it is such a pity, in my opinion, that the Court in Fedotova did not want to engage with Art. 14: once we established if the difference in treatment (i.e. absence of legal recognition) is discriminatory and what are the legal basis for this conclusion, we can also reason whether it is applicable to other categories of relationships and whether the two situations are comparable are similar. For example, one could hypothetically argue that a three-way relationship (to put it bluntly) is different from a couple of two people and therefore falls shortly in the first step of the discrimination test (i.e. comparability). In this case Fedotova would be limited to same-sex or different-sex relationships consisting of two people.

Now that the Court confined its analysis to Art. 8 alone, I struggle to see a real reason to leve polygamous relationships out of it.