Court says no gay marriage, but takes a big step forward
Strasbourg – June 26, 2010 – The European Court of Human Rights, with a Chamber judgment in the case Schalk and Kopf v. Austria, established the Members of the
European Convention of Human Rights are not obliged to ensure to the homosexual couples the right to marry.
The applicants, Hornst Michael Schalk and Johann Franz Kopf are a same – sex couple who asked the competent Austrian authorities to allow them to contract marriage in 2002;
their request had been refused by the Vienna Municipal Office, the Vienna Regional Governor and the Austrian Constitutional Court, that dismissed the complaint holding that
neither the Austrian Constitution nor the European Convention on Human Rights give rise to an obligation to change the law of marriage ensuring homosexual couples the right to
get married. The Court examined whether the right to get married, assured by the article 12 of the ECHR to men and women, could be applied to a same-sex couple, observing
that among Council of Europe member States there is no consensus regarding same – sex marriage, so that, in the Court opinion, national authorities are considered to be best
placed to assess and respond to the needs of society in this field. There is, therefore, no obligation on the Austrian Government to grant a same-sex couple to get married.
In its decision the Court also deals with the question of same – sex marriage with regard to the parameters established by the Articles 14 and 8 of the Convention, ruling that
the relationship of the applicants, a cohabiting same – sex couple living in a stable partnership, not only fell within the notion of “private life”, but within the notion of “family
life” as well, just as the relationships of different – sex couples. Anyway, considering that the Convention has to be read as a whole and given that article 12 does not impose an
obligation to States to grant same – sex couples access to marriage, the Court ruled that this requirement is not even imposed by articles 14 and 8 of the Convention. Examining
the Austrian legislation, and particularly the Registered Partnership Act entered into force on 1 January 2010 and grating some legal effects to same – sex relationships, the
Court finally established that Austrian legislator could not be reproached for not having introduced the Registered Partnership Act any earlier, especially considering that even if
there’s an emerging European consensus towards legal recognition of same sex couples, there’s not yet a majority of States providing for it.
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