Unanimously, the World Court of Human Rights has established, verbatim, that there is no right to same-sex marriage”. The 47 judges from the 47 countries of the Council of Europe, which are members of the Plenary Court of Strasbourg (the most important human rights court in the world), published a statement of great relevance which has been surprisingly silenced by the progress of information and its field of influence. In fact, all 47 justices unanimously endorsed the ruling that “there is no right to same-sex marriage. The sentence was based on a myriad of philosophical and anthropological considerations based on the natural order, common sense, scientific reports and, of course, positive law. In the latter case, in particular, the judgment was based on Article 12 of the European Convention on Human Rights. This also equates to treaty resolutions relating to human rights, in particular articles 17 of the P San José Act and 23 of the International Covenant on Civil and Political Rights. In these historic resolutions, the Court decided that the notion of family contemplates not only “the traditional concept of marriage, that is, the union of a man and a woman”, but also that they should not be imposed on governments an “obligation to open marriage to persons of the same sex”. With regard to the principle of non-discrimination, the Court also added that there is no discrimination, since “states are free to reserve marriage only to heterosexual couples”.
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Here is the press release from the European Center for Law & Justice:
The ECHR unanimously confirms the absence of the right to same-sex marriage
On June 9, 2016, the European Court delivered its decision in the case of Chapin and Charpentier v. France (n°40183/07). It questioned the annulment by the French courts of the “Bègles marriage” celebrated in 2004 between two men, in violation of French law.
With this decision, the European Court of Human Rights unanimously recalls that the European Convention on Human Rights does not include a right to marriage for homosexual couples, both in terms of the right to respect for private and family life (art. 8) as well as that of marrying and founding a family (art. 12).
More precisely, this new decision confirms a series of judgments, recalling in particular that: the question of homosexual marriage is “governed by the national laws of the Contracting States” (§ 36, referring to the Schalk and Kopf v. Austria (n°30141/04); Article 12 enshrined the traditional concept of marriage, namely the union of a man and a woman” and “did not impose on the respondent government the obligation to open marriage to a homosexual couple” (§ 36, referring to Gas and Dubois v. France, n°25951/07, § 66); article 12 “could not be understood as imposing such an obligation [to open the marriage ] to the Contracting States.
This reminder of the recent Hämäläinen v. Finland [GC] (no. 37359/09), and Oliari and others v. Italy (nos. 18766/11 and 36030/11), has a strong impact since it recognizes a theoretical limit to the literal interpretation of the right to marry (§ 39); with regard to the right to respect for private life (guaranteed in article 8) and the principle of non-discrimination (article 14), “States remain free (…) to only open marriage to heterosexual couples and (…) benefit from a certain margin of appreciation in deciding the exact nature of the status conferred by other modes of legal recognition” (referring to the Schalk and Kopf judgment, § 108 and Gas and Dubois, § 66); States “benefit from a certain margin of appreciation in deciding the exact nature of the status conferred by other modes of legal recognition” on same-sex couples, and its differences with the rights and obligations conferred by marriage (§ 51).
The European Center for Law & Justice (ECLJ) welcomes this decision, which it considers to be consistent with a fair interpretation of the European Convention on Human Rights.
The ECLJ notes, however, that this decision, following the Oliari judgment, does not completely close the possibility of a future evolution of the position of the Court in favor of a right to homosexual marriage as a component of a right “to the recognition” of stable relations, while recognizing that such an interpretation cannot be based on the letter of the Convention.
The question of homosexual marriage places the Court faced with the limits of its power to interpret the Convention, limits marked by the very letter of this treaty and by the explicit will of a significant number of its States parties. While it is always appropriate to apply the Convention to developments in society, it is however abusive to claim to “evolve” the very content of the Convention.
