No obligation on States to allow homosexuals to marry (ECHR)

24 June 2010, Strasbourg (Ref. Applic No. 30141/04). The European Court of Human Rights ruled that article 12 of the Convention did not impose an obligation on States to grant same-sex couples access to marriage.

 Applicants claimed a breach of article 12 of the Convention: ‘Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.’ The Court observed the use of the term ‘men and women’, which was deliberately inserted, in contrast with other articles that use terms such as ‘everyone has the right...’. Comparison was also made with article 9 of the Charter of Rights of the European Union, drawn up in the 1990s, as opposed to article 12 of the Convention which reflects the 1950s society, and is deliberately wider: ‘The right to marry and found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights’.

The Court furthermore observed that same-sex marriages were only permitted in six of the member states.  Given the fact that marriage has deep-rooted social and cultural connotations which may differ largely from one society to another, the Court was not ready to rush to substitute its own judgment in place of that of the national authorities, who are best placed to assess and respond to the needs of society (para. 62).

Applicants also sought to devise a right by combining articles 8 (the right to respect for private and family life, home and correspondence) and 14 (discrimination in the enjoyment of rights). A rapid evolution of social attitudes towards same-sex couples and their legal recognition in many member states, led the Court to conclude that cohabiting same-sex couples living in a stable partnership, fell within the notion of ‘family life’, just as a different-sex couple in the same situation would. However, the Court further observed that notwithstanding article 8, and the right to enjoy rights without distinction (art. 14), the Convention has to be read as one whole. Thus, the fact that article 12 did not impose an obligation on States to grant same-sex couples access to marriage could not be circumvented by a combined reading of articles 8 and 14.

To read the judgement click here