Same-Sex Marriage: Building an Argument Before the European Court of Human Rights in Light of the US Experience

2017

2020

The right to marry is one of the most fundamental human rights and at the same time one of the most debated topics nowadays. Considered as a right closely related to the social and cultural mentality of the society, there has always been a dichotomy of standings toward several cases of non-traditional marriage. Traditionally, the right to marry is enjoyed by a man and woman of marriageable ages who express their consent to enter in this juridical relationship out of which rights and obligations arise. Their common purpose is to create a family. The same reasoning was also followed by the early European Commission on Human Rights (ECmHR) and the later European Court of Human Rights (ECtHR) in cases regarding same-sex relationships, whereby the biological interpretation of the right to marry stipulated in Article 12 of the Convention prevailed. While the LGBT+ community fights for equal marriage rights, a form of “attack” towards the Governments was and continues to be made in front of the ECtHR. This paper will analyze the evolvement of the ECtHR’s approach towards same-sex marriage, followed by a brief analysis of the Court’s standings over the years regarding the prisoner’s right to marry, as it serves as another clear example to see the variation of the Court’s perspective.

Političke perspektive

ECtHR has established case law by which national authorities are obliged to ‎legally recognize and regulate same-sex partnerships. However, they are not‎ obliged to give the right to marry to same-sex partners taking into account‎ dominant moral beliefs in society. This paper aims to test such an approach‎ from the perspective of four theories of justice. The aim is to see if the consistent ‎application of precepts and principles of these theories of justice to this ‎case law makes such an approach of the ECtHR just from the viewpoint of any‎ of these theories of justice. This way what may seem as intuitively just or unjust‎ is tested against concrete and particular standards of justice.‎

This paper will engage with the European Court of Human Rights (ECtHR) case law regarding sexual orientation issues through the doctrine of the margin of appreciation of states. The main research question it will attempt to answer will be what is the nowadays-existing margin of appreciation of states as far as LGBT issues – related cases are concerned? The paper will attempt to trace the emergence and development of relevant case law and the Court’s judgments and opinions on LGBT - related matters. Furthermore, it will discuss how the margin of appreciation doctrine „operates in the context of particular alricles of the ECHR” , related with LGBT issues. For this purpose, the margin of appreciation doctrine will be introduced and discussed at some length, as well as how the Court defines and employs this concept in its relevant case law. The LGBT – related cases will be represented by three landmark cases concerning general criminal aspects of homosexuality. The example of cases related to the criminal aspects of homosexuality has been selected over cases related to marriage, adoption and parental rights, for instance, due to the author’s opinion that criminal aspects cases give the most detailed account of how the margin of appreciation of states has changed over the years.

Političke perspektive , 2023

ECtHR has established case law by which national authorities are obliged to legally recognize and regulate same-sex partnerships. However, they are not obliged to give the right to marry to same-sex partners taking into account dominant moral beliefs in society. This paper aims to test such an approach from the perspective of four theories of justice. The aim is to see if the consistent application of precepts and principles of these theories of justice to this case law makes such an approach of the ECtHR just from the viewpoint of any of these theories of justice. This way what may seem as intuitively just or unjust is tested against concrete and particular standards of justice.

The Oxford Encyclopedia of LGBT Politics and Policy, 2020

Since the 1980s, the law of the European Union (EU) has become a substantial transnational source of political empowerment for LGBT actors in Europe. The Rome Treaty (1957), which established the European Economic Community, contained a gender equality clause. In the 1990s, this provision was used to protect employment rights of intersex individuals via litigation schemes based on EU law. Yet the subsequent attempts to push forward a similar legal protection for gay and lesbian equality at the Court of Justice of the European Union (CJEU), based on the EU sex-equality clause, failed. Since then, the position of the LGBT community in EU legislative politics has evolved significantly through two dimensions. First, the Amsterdam Treaty (1997) extended the number of grounds protected against discrimination in EU law, adding sexual orientation, among others, to this palette. The Amsterdam Treaty permitted the EU Council to adopt the Framework Equality Directive 2000/78/EC, an instrument of secondary Union law that has safeguarded minimum standards of protection against homophobia in relation to matters of employment in all member states. This framework EU legislation has been used by LGBT litigants in their fight for equal working opportunities and pension rights at the CJEU. Second, the introduction of EU citizenship by virtue of the Maastricht Treaty (1992) and the respective secondary law (the EU Citizenship Directive 2004/38/EC) have paved the way for status recognition of same-sex spouses in the member states that have not previously recognized same-sex partnership or marriage. The future of LGBT legislative politics and the LGBT community in Europe will largely depend on whether EU law is able to extend protection beyond the current confines of the employment area, broaden its scope to cover social dimensions such as health and education, and fully recognize same-sex marriages and partnerships throughout the EU.

European Private Law eJournal, 2015

The European “backyard of rights” is enlarging and Member States face a new period of acknowledgment of human rights. The guarantee of the new rights occurs both through national legislation and through the jurisprudence of international or supranational courts. The European Court of Human Rights (ECtHR) became the “fourth judge” called to intervene when the domestic legislation is not guardian of new rights regarding the recognition of the same-sex couples but also the adoption of a child by these couples. In this sense, recently the ECtHR ruled that the impossibility of second-parent adoption in a same-sex relationship is discriminatory when such adoption is possible for unmarried heterosexual couples, although the exclusion of the biological parent. Thus, the decision of the ECtHR established the principle that the adoption of children by same-sex partners should be possible, as it is for heterosexual unmarried couples.

Developments in European Law and European Union Policy on same-sex couples: An Overview of judicial, legislative and policy developments in the recognition of same-sex couples in Europe. This paper examines one development in one aspect of European Family law, the Legal recognition of same-sex couples. It provides an overview of the legislative, judicial, and policy background over the past two decades that have affected and effected the legislation, judicial and policy direction with regards to same-sex marriage and registered partnerships in European states. The granting of legal recognition to same-sex couples in Europe and the associated rights and obligations. In addition the paper examines the European Union’s position on these developments in regards to these development in the European Union. As such the paper examines and discusses a number of salient cases as well as various national acts and Conventions. The paper also seeks to identify the various impetuses behind the various forms of legal recognition of Same-Sex Couples in European States. Part one traces developments of within the national and the EU context via legislative, judicial and policy developments. It discusses the different elements and approaches that European states have taken towards granting legal recognition and protection of same-sex couples. This involves examining what was the impetus behind each change: National or extra national jurisprudence, national or EU legislation or policy. Part two examines the position that the European Union has taken on this issue particularly through the conventions, the courts and policies. The paper shows how the main impetus for change has come from national legislatures. This has in turn impacted other national legislatures as well as influenced the courts. The paper raises some issues about the impact of enlargement both in regards to the development of a common trend with regards to the legal recognition of same-sex couples and the attitude of the European courts in this respect.