No right to same-sex marriage under the European Convention on Human Rights . . . yet

On 24 June 2010, a unanimous Chamber (7 judges) of the European Court of Human Rights held that Article 12 (right to marry) of the European Convention on Human Rights does not oblige Austria (and therefore the other 46 States Parties to the Convention) to grant same-sex couples access to marriage. Here is the judgment. The primary reason for the Chamber's holding is "[T]here is no European consensus regarding same-sex marriage. At present no more than six out of forty-seven Convention States allow same-sex marriage." (para. 58) Those six countries are Belgium, the Netherlands, Norway, Portugal, Spain and Sweden.

I don't think this judgment is legally surprising, and I would be surprised if a Grand Chamber (upon referral under Article 43) holds that Article 12 does require same-sex access to marriage. However, I will not be surprised if within my lifetime the Court departs from this Chamber's judgment because a European consensus has emerged to grant same-sex couples the right to marry. Only time will tell.

Perhaps the more legally interesting part of the judgment is the question of whether the lack of any means of legal recognition of same-sex couples (e.g., registered partnerships) violates Article 14 (prohibition of discrimination) taken together with Article 8 (right to respect for private and family life) of the Convention. The majority dodged the question (para. 103), while a Joint Dissenting Opinion of three judges answered it this way: "Any absence of a legal framework offering them, at least to a certain extent, the same rights or benefits attached to marriage . . . would need robust justification, especially taking into account the growing trend in Europe to offer some means of qualifying for such rights or benefits." (para. 9) These three judges found a violation of Article 14 in conjunction with Article 8 because Austria did not advance a justification, let alone a robust one, for the absence of legal recognition until 1 January 2010. (para. 8) It would be worth reading how a Grand Chamber upon referral decides this particular question. Again, only time will tell.