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A legal right to gay marriage?*

Andrew Commins, barrister, associate member of St John’s Chambers in Bristol analyses the legal issues relating to the question of gay marriage.

Andrew Commins, Barrister, Associate member, St John's Chambers, Bristol

*More properly conceived as the following question: do international and regional human rights laws provide for the right to same-sex marriage?

Rights and wrongs
Gay marriage is a trending, if not a trendy, topic. 1 The subtle semantic difference is one that some politicians seem to miss. David Cameron does not "support gay marriage in spite of being a conservative….[he] supports gay marriage because [he is] a conservative." Barack Obama's tortured journey on the issue reached its conclusion when he professed, "for me, personally, it is important …to go ahead and affirm that I think same sex couples should be able to get married." Great. What a relief (if you're a supporter of same-sex marriages). At the time of writing, developments continue apace; for example the New Zealand Parliament is imminently due to hotly debate a marriage equality bill. The citizens of Maryland, USA are moving inexorably towards a referendum in November on whether to legalise gay marriage or not. Closer to home, Scotland is at the frontline of promoting marriage-equality legislation.

The expected irony, of course, is that the subject of gay marriage which, for its proponents, is all about spreading union and togetherness, is proving hugely divisive. The principal opponent remains organized religion, in its many forms. 2 For the Church of England, the coalition's plan to introduce marriage equality is one of the most serious threats to its established role since the reign of Henry VIII. 3 The Pope regards gay marriage as one of a number of threats to the traditional family that "threaten human dignity and the future of humanity itself." 4 Cardinal Keith O'Brien of the Catholic Church in Scotland has denounced the Scottish Executive's plans to introduce same-sex marriage as "a grotesque subversion of a universally accepted human right."  5 The language of the LGBT campaign is also sufficiently clear: "gay rights are human rights" proclaimed Hillary Clinton to a packed audience in Geneva in 2011 in recognition of International Human Rights Day. 6

Religious objections to gay marriage can be understood, even if not approved. The same understanding must apply to groups campaigning for gay marriage as a recognition of love, commitment and fairness. 7 However, the use of terms such as 'human dignity', 'equality' and 'human rights' raises the debate to another level. Rather than the arguments being political, religious or moral, they become legal: rather than ephemeral and esoteric, they become narrative and identifiable. This article seeks briefly to consider the international and European regional standards relevant to the gay marriage debate and to assess their impact for supporters and objectors alike. 8 Do human rights conventions 9 guarantee the right to same-sex marriage?

International standards
The right to marry is provided for in a number of international laws and declarations. For example, The Universal Declaration of Human Rights (UDHR) states that 'men and women of full age….have the right to marry and found a family' (Article 16(1)). The International Covenant on Civil and Political Rights (ICCPR) also recognizes the 'right of men and women of marriageable age to marry and found a family' (Article 23(2)).

In 2002 the Human Rights Committee ('the Committee) considered a communication submitted by Ms Joslin (and others) against New Zealand. 10 Ms Joslin complained that the State's refusal to grant a marriage license on the basis that she was in a lesbian relationship violated her rights under Article 23 ICCPR, as well as her interrelated rights to equality, privacy and legal personality. New Zealand argued principally that Article 23(2) ICCPR envisages that marriage may properly be defined only as a union between members of the opposite sex. The complainants maintained that the failure to grant them a marriage license failed to recognize their innate human dignity, their right to equality or the capacity for marriage to be socially deconstructed and reconstructed to meet changing concepts of public morality. The Committee collectively gave the complainant's arguments short shrift. Article 23(2) ICCPR is the only covenant provision defining a right in terms of 'men and women' rather than 'every human being' or 'all persons'. Therefore, without providing any further analysis of the arguments as to equality or non-discrimination, and applying a literal and contextual interpretation of the text of Article 23(2) ICCPR, the Committee found no violation of any covenant rights.

Two concurring opinions by members of the Committee provide a more investigative assessment. These opinions added that the Committee's conclusion "should not be read as a general statement that differential treatment between married couples and same-sex couples not allowed under the law to marry would never 11 amount to a violation [of the right to equality before the law]. On the contrary, the Committee's jurisprudence supports the position that such differentiation may very well, depending on the circumstances of a concrete case, amount to prohibited discrimination." 12

This is a difficult conclusion to rationalise with the Committee's more general findings. However, the logic can be drawn from the concurring opinions' reliance on a very discrete and particular assessment of Ms Joslin's complaint. As Ms Joslin had failed to establish that the refusal of the marriage license personally affected her enjoyment of other human rights protected by the ICCPR (apart from the right to marry itself), no discrimination was established.

Non-discrimination and equality
It is now axiomatic that 'sexual orientation' is a prohibited ground of discrimination, despite its exclusion from the narrative list of such grounds in Article 26 ICCPR. In the matter of Toonen v. Australia, Mr. Toonen complained to the Committee 13 that provisions of the Tasmanian criminal code criminalizing sexual contact between consenting adult men in private violated principles of non-discrimination in the ICCPR. The State party argued that the law was justified as part of its strategy to prevent HIV / AIDS and on moral grounds, as moral issues were to be decided at the domestic level.  In determining the merits, the Committee confirmed that the reference to 'sex' as a ground for non-discrimination includes 'sexual orientation'. 14 The Committee stated firstly, that criminalization of homosexual activity ran counter to informative public health programmes regarding HIV / AIDS and, secondly, that 'moral issues' were not exclusively a matter of domestic concern. 15

In Joslin v. New Zealand, the concurring opinion recognized that, in failing to offer same-sex couples even the possibility to marry or to enter into recognized unions similar to marriage, a State may violate the right to non-discrimination. A violation could be found, therefore, if same-sex couples, for example, are denied certain rights or benefits (social, economic or other) that are available to married heterosexual couples. However, the Committee was not sufficiently brave, obtuse or optimistic - depending on your stance - to extrapolate from these potential violations a more general right to same-sex marriage.

Regional Standards
Article 12 of The European Convention on Human Rights (ECHR) provides that '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.' Article 8(1) ECHR guarantees the right of everyone to respect for family and private life. Article 14 ECHR states that 'the enjoyment of the rights and freedoms [in the Convention] shall be secured without discrimination on any ground…..'

In the 2010 case of Schalk & Kopf v. Austria 16, the European Court of Human Rights ('the Court') determined the applicants' claim that Austria's refusal to permit them to marry as two men violated their rights pursuant to the ECHR. 17 The case is also of interest as the United Kingdom (UK) government intervened to establish its position at that time.

The right to marry (Article 12 ECHR)
In 2010, six out of forty-seven Council of Europe states granted equal access to marriage for gay people. 18 Austria argued – and the UK concurred – that the text of the ECHR limited the right to marry to people of the opposite sex, and that no convergence of standards on gay marriage amongst member states justified departing from that position. The Court agreed that no European consensus could be drawn from the differing practices of Member States. It found that a textual and historical interpretation of the right to marry limited itself to unions of persons of the opposite sex. Additionally, the Court highlighted that the text of Article 12 ECHR expressly permits member states to regulate marriage according to national laws.

The Court also considered Article 9 of the Charter of Fundamental Rights, which applies to member states and institutions of the European Union and, in its text, abandons the heteronormative limitation of the right to marry. 19 Nevertheless, the Court was persuaded by the commentary to the Charter, which notes the divergence of views in Europe and states that 'there is no explicit requirement that domestic laws should facilitate [same-sex] marriages.'

However, the court in Schalk was cautious to note the contemporary nature of its judgment in relation to Article 12, such that it could 'no longer consider that the right to marry enshrined in [the Convention] must in all circumstances be limited to marriage between two persons of the opposite sex…… [H]owever, as matters stand, the question of whether or not to allow same-sex marriage is left to regulation by the national law of the Contracting State (emphasis added).' 20 Therefore, Article 12 ECHR does not – in the current European climate – equate to a right to gay marriage, enforceable by the individual against the State.

The right to a family life (Article 8 ECHR)
An often under-reported significance of the Schalk judgment is the Court's finding that 'the relationship of a cohabiting same-sex couple living in a stable de facto partnership falls within the notion of "family life", just as the relationship of a different-sex couple in the same situation would.' 21 This innovative conclusion is noteworthy for two reasons. Firstly, it is the Court's recognition of the rapid evolution of social attitudes towards same-sex couples in the Council of Europe in the last decade. Secondly, it provides the basis for an analysis of gay marriage rights under Article 14 ECHR (non-discrimination), which is a 'parasitic' provision and requires the engagement of other substantive Convention rights (such as Article 8 ECHR).

The right to non-discrimination (Article 14 ECHR)
The Court in Schalk concluded that it was illegitimate to construe a right to gay marriage from the 'parasitic' provision in Article 14, when it had equally refused to do so from the specific and independent right to marry in Article 12 ECHR. It reiterated that the provisions of the Convention must be read in harmony with each other, rather than in conflict. This conclusion was repeated in the recent judgment in Gas and Dubois v. France22

There are four important principles regarding cases involving discrimination under Article 14 ECHR. Firstly, the ECHR is a dynamic and living instrument that must adapt if it is to survive. Secondly, sexual orientation, although not explicitly referred to in the text of Article 14 ECHR, is a prohibited ground for discrimination. 23 Thirdly, although Member States enjoy a margin of appreciation – a certain individual discretion in interpreting and applying the Convention – "differences based on sexual orientation require particularly serious reasons by way of justification." 24 Fourthly, discrimination exists if there is differential treatment on the basis of a protected ground (as extended to include sexual orientation) and such treatment does not pursue a "legitimate aim" or if there is no "reasonable proportionality between the means employed and the aim sought to be realised." 25

Between the date of the application before the Court and the judgment in Schalk, Austria had independently introduced the Registered Partnership Act. This fact prevented the Court from ruling on whether Article 14 in combination with the right to a family life required Austria to provide gay couples with a means of legal recognition for their relationships (and/or how such recognition should compare with marriage). The court limited its consideration, therefore, to whether Austria ought to have provided an alternative means of legal recognition of the partnership earlier than it did. This, of course, was a very narrow and, arguably unimpressive, limitation to the judgment. In finding that Austria had acted legitimately within its margin of appreciation to recognize gay unions but not marriages, the Court relied again on the piecemeal development of laws recognizing same-sex unions and the lack of Europe-wide support for such laws or for the appropriate time for their enactment. 26 Nevertheless, the Court made reference in its judgment to "an emerging European consensus towards [the] legal recognition of same-sex couples" in this area of evolving rights.27  

The dissenting opinions
The finding of no violation of Article 14 ECHR was made on a 4:3 voting basis, which can be contrasted with the unanimous findings pursuant to Article 12. This relative ambivalence is perhaps demonstrative of the alleged 'lack of consensus' relied on by the majority regarding the status of same-sex unions, whether marital or otherwise. The dissenters argued for a finding of discrimination. They found that Austria had not provided any cogent reasons justifying the differential treatment between same-and opposite-sex couples seeking recognition of their status before 2010. Therefore, the dissenters considered that arguments relying on the lack of a 'European consensus' were irrelevant. They concluded that "today it is widely recognised and also accepted by society that same-sex couples enter into stable relationships. Any absence of a legal framework offering them, at least to a certain extent, the same rights or benefits attached to marriage.…….would need robust justification, especially taking into account the growing trend in Europe to offer some means of qualifying for such rights or benefits." 28

The dissenters did not go so far as to proclaim a right to gay marriage. However, they did rely on the clear jurisprudence of the Court that, as the convention right in Article 8 is engaged, a state must provide particularly serious reasons to justify differential treatment between straight and gay people placed in similar situations. 29

The Human Rights Committee and the European Court of Human Rights have so far refused to recognize a human right to same-sex marriage. This, of course, has not stopped the more liberal European and wider-world democracies (including Canada and South Africa) from enacting legislation to enshrine marriage equality. However, so long as the European Court of Human Rights relies on the 'consensus argument' to extend or limit a State's margin of appreciation in providing legal recognition of same-sex unions, a right to gay marriage will have to wait. The Court is unwilling to rush to substitute its own judgment in place of that of national authorities on this issue, which, it deems, are best placed currently to assess and respond to the needs of society.  30

Gay rights are human rights, as Hillary Clinton said, but they are arguably limited rights. For Cardinal Keith O' Brien, he could have chosen to condemn the 'extension' rather than the 'subversion' of the right to marry [to gay people]. This is an impassioned debate on both sides but language is a powerful tool. In the arena of human rights -and for its supporters - the right to gay marriage is currently, at its highest, an evolving one. For those in opposition, the defence to this evolution appears to be to campaign against national legislative policy. As I said, gay marriage is a trending topic……


1 Stolen from the language of Twitter

2 But not all, of course: Quakers in Britain, Liberal Judaism and the Unitarian and Free Christian Churches (among others) have voiced support for same-sex marriage





7 See, for example, Americans for Marriage Equality, USA

8 This article is not long enough – nor does it intend – to deal with the arguments relating to obliging or not obliging religious institutions to conduct same-sex marriages; nor does it seek to assess the national legal intricacies of legislation enacting marriage equality

9 I am looking specifically at the ICCPR and the ECHR given the limited space available in this article

10 Ms. Juliet Joslin et al v. New Zealand, Communication No 902/1999, U.N.Doc A/57/40

11 Emphasis added

12 Fn. 9, individual opinion of Lallah and Scheinin

13 Communication No. 488/1992, U.N. Doc CCPR C/50/D/488/1992

14 Ibid, para 8.7.

15 Ibid, paras 8.5 and 8.6

16 Application No. 30141/04 available 24/06/10

17 Despite Austria enacting laws to recognize same sex civil unions between the date of the application and the hearing, the Court delivered its judgment in any event on the question of full marriage equality.

18 At the time of writing, this number has increased to seven (a larger number – 13 - permit legal unions of some description that are not, in themselves, marriages in the traditional sense).

19 Article 9 reads: the right to marry and to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights

20 Schalk & Kopf v. Austria, para 61

21 Ibid, para 94

22 Application No. 25951/07 available 15/03/12

23 See, for example, the long line of jurisprudence extending from Salgueiro da Silva Mouta v. Portugal (application No. 33290/96)

24 Karner v. Austria, Application No. 40016/98, para 37.

25 Karlheinz Schmidt v. Germany, Application No. 13580/88, paragraph 24

26 Schalk and Kopf v. Austria, para 105

27 Ibid

28 Ibid, para 9 of the dissenting opinion

29 Ibid, para 8 of the dissenting opinion

30 Schalk & Kopf, paragraph 62