ECtHR Finds No Right to Same Sex Marriage: Will U.S. Courts Follow Their Lead?

by Julian Ku

Marko Milanovic over at EJIL Talk! has a nice discussion of a recent European Court of Human Rights Chamber decision (Schalk and Kopf v. Austria, no. 30141/04) finding that denying same-sex couples the right to marry does not violate a member state’s obligation under the European Convention of Human Rights. The analysis is complicated, but one part of it is striking to an American constitutional lawyer, since it rejects the claim that Austria’s refusal to register a same-sex marriage violates the Convention’s equality guarantees.  Although it is not exactly analogous, its analysis is roughly comparable to a U.S. court undertaking equal protection analysis.  Will the U.S. courts now considering the equal protection claim against California’s Proposition 8 cite Schalk and Kopf?

2 Responses

  1. With respect, I think the differences in law and fact are just tto great for Schalk and Kopf to have any relevance to the American enquiry. Certainly, there isn’t much that an American court might usefully refer to in the judgment.

    The European Court’s analysis under Article 12 of the Convention is, of course, neither here nor there as far as the equal protection point is concerned. Article 12, on its wording, was to be read as not extending to same-sex marriage, and there was no relevant European consensus to lead the Court to consider ‘present-day conditions’, as per the ‘living instrument approach’.

    The discrimination analysis by the Strasbourg Court, moreover, was also somewhat predicated on the preceding analysis of Article 12. The Court found that, inasmuch as Article 12 did not extend the right to marry to same-sex couples, it covered that particular ground. The much more general provisions of Article 14 read with Article 8 (discrimination relevant to family life) could not be said to force a different conclusion (para. 101).

    The rest of the judgment is not so much about gay marriage as such, but about alternative forms of recognition. Austrian law now provides for such recognition, but hasn’t done for long. The question for the Court therefore found that it did not need to decide whether there was a right to ‘same-sex partnerships’ as such. Rather, it asked whether Austrian law should have provided for such partnerships any earlier than it has and whether they ought to give couples more rights than they now do. On both points, the Court found that Austria had not transgressed its margin of appreciation.

    Accordingly, even if there was a right to alternative forms of recognition, this did not come in the fairly absolute form contended for by the applicants.

    From what I understand, the American debate is not about alternative forms of recognition, but about discrimination in respect of marriage proper. On that point, the specifics of Article 12 proved controlling in Schalk and Kopf.

    If the U.S. debate was about alternative forms of recognition, there might be slightly more of interest in the judgment for an American observer. But I have some trouble imagining the debate moving on to that ground (unless it already has). This issue seems only slightly less contentious than the one about the institution of marriage. The day Fox News et al. support registered partnerships, they will probably implode.

    Also, all this obviously puts the discussion about citing foreign cases to one side.

  2. I agree No Right to Same Sex Marriage

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