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Three Years On: Same Question, Different Answer? ‘Is There a Legal Right to Gay Marriage?’

Andrew Commins, barrister of St John's Chambers, considers the ECtHR judgment in Oliari v Italy and its wider implications.

Andrew Commins, barrister, St John's Chambers, Bristol

Andrew Commins
, barrister, St John's Chambers, Bristol


In 2012 I wrote an article with the title 'A Legal Right to Gay Marriage?' I questioned whether international and regional human rights laws provided for the right to same-sex marriage. I answered this question with a 'no'.

Nevertheless, the trend towards recognition of same-sex marriage – at least in the West –  has continued apace1. As I write today, 18 countries globally allow same-sex marriage and, by the end of this year, that number will rise to 212. I differentiate in the analysis between the permission to marry and the right to enter into a civil union or a civil partnership; a legal association that 'falls short' of marriage, as it is commonly understood. However, this ongoing march in many countries towards equal marriage-rights faces a similarly strident and vociferous counter-approach. For example, Vladimir Putin's United Russia Party recently unveiled a 'Straight Pride' flag as the campaign to criminalize the propaganda of same-sex behaviour is maintained. In 2014 the Gambian Parliament adopted legislation for a new offence of 'aggravated homosexuality', which is punishable on conviction with imprisonment for life. Uganda's President Museveni recently assented to the Anti-Homosexuality Act of 2014 imposing life sentences on people found guilty of repeated gay sex and custodial terms for promoting homosexuality.

Now in 2015, three years after my initial article, I thought it time to update my conclusions. This decision was, in part, motivated by two significant and recent events: firstly, the United States' Supreme Court's decision that the US Constitution provides for a federal right to same-sex marriage and, secondly, the European Court of Human Rights' (ECtHR) recent judgment (21 July 2015) in the case of Oliari & Others v Italy 3.It is the European case that I will seek to analyse in this article. Mr Oliari and his partner, Mr A, applied in 2008 to the local Italian authorities for the relevant marriage banns. Italian law did not permit same-sex marriage nor same-sex unions of any kind and their application was rejected. They appealed through the domestic courts. Some seven years later, the ECtHR held that the applicants' right to a private and family life pursuant to Article 8 of the European Convention on Human Rights (ECHR) had been violated. The Italian Government had 'failed to fulfil their positive obligation to ensure that the applicants [had] available a specific legal framework providing for the recognition and protection of their same-sex union'4 .

Global developments

It is impractical to list all the legal and constitutional decisions globally over the last three years that have affected same-sex marriage rights. However, the short inventory below highlights the key developments.

April 17 2013: The Parliament of New Zealand legalized same-sex marriage by a vote 77-44

May 18 2013: President Francois Hollande signed the same-sex marriage bill into law

July 17 2013: Royal assent given to the Marriage (Same Sex Couples) Bill, legalizing gay marriage in the United Kingdom

November 28 2014: The Finnish Parliament approved a bill to enable same-sex marriages (105-92 votes)

January 1 2015: Luxembourg laws legalizing same sex marriage came into force

January 6 2015: Same-sex marriage became legal in Florida

March 4 2015: The Slovenian Parliament approved same-sex marriage laws (51-28 votes)

May 22 2105: The Republic of Ireland became the first country to approve same-sex marriage and its constitutional protection by means of a popular referendum (62% yes 38% no)

May 26 2015: Greenland's Parliament approved same-sex marriage laws by a unanimous vote 27-0 (law comes into force on 1 October 2015)

June 26 2105: The Supreme Court of the United States of America ruled in favour of a federal right to same sex marriage.

Oliari & Others v Italy, the European Court of Human Rights (ECtHR)

The applicants in this case argued that:

  1. Recognition in law of one's family life and status was crucial for the existence and well-being of an individual;
  2. The State's margin of appreciation – i.e., the space for manoeuvre granted to national authorities to fulfil their obligations under the ECHR – was narrow, due to the fact that the 'discrimination' in legal protection was based solely on the sexual orientation of the individuals involved;
  3. In view of the positive trend towards the recognition of same-sex couples in Europe, the ECtHR should impose on States a positive obligation to ensure same-sex couples have access to an institution which is more or less equivalent to marriage;
  4. The decision did not involve striking a balance with the rights of others; the case simply related to the rights and duties of partners towards each other;
  5. The ECtHR should avoid being reduced to an 'accountant' of majoritarian domestic views but should act as the guardian of the ECHR and its underlying values (i.e. the ECtHR should not just decide cases by reference to an individual country's national bias against, or in favour, of the recognition of homosexual rights);
  6. The lack of recognition of their union affected and disadvantaged the applicants in many specific and concrete ways – for example, rights to inheritance and taxation benefits, pension  provision, housing, access to medical records and rights to maintenance;
  7. Any argument that the lack of recognition of same-sex unions was aimed at protecting the family 'in the traditional sense' was flawed: such an approach was contrary to the Court's evolving case law and 'in radical contrast with the demands of pluralism, tolerance and broadmindedness, without which there was no democratic society'.5

The Italian Government submitted that:

  1. The ECHR did not oblige national authorities to provide for same-sex marriage or other same-sex unions;
  2. The matter should be left to the national authorities to decide. The individual State was 'the only entity capable of having cognisance of the 'common sense' of its own community, particularly concerning a delicate matter which affected the sensitivity of individuals and their cultural identities'6;
  3. The ECtHR's 'power' to impose an obligation on a State to recognise same-sex unions could not be dictated by the behaviour of other States. In any event, developments in other Council of Europe countries had been relatively recent and were the result of an internal and individual process of social maturation;
  4. The Italian State was in a process of debating Bills dealing with the recognition of civil unions and 'this intense activity in the past thirty years showed an intention on the part of the State to find a solution which would meet with public approval, as well as corresponding to the needs of the protection of a part of the community'7;
  5. Same-sex couples wishing to give a legal framework to various aspects of their community life could enter into cohabitation agreements regulating, inter alia, testamentary rights, housing and residence and the allocation and ownership of assets.

Interveners (for example, ILGA, the International Lesbian, Gay, Bisexual, Trans and Intersex Association) argued as follows:

  1. Even assuming that the ECHR did not yet require equal access to legal marriage for same-sex couples, it was (at least) indirect discrimination based on sexual orientation to limit particular rights or benefits to married different-sex couples but to provide no means for same-sex couples to qualify;
  2. Differences in treatment based on sexual orientation were analogous to difference in treatment based on race, religion and sex, and could only be justified by particularly serious reasons.

The ECtHR decided as follows:

  1. Article 8 ECHR not only protects individuals from arbitrary State interference but may impose on States certain positive obligations to protect the rights enshrined in Article 8;
  2. Private cohabitation agreements in Italy fail to provide for some basic needs which are fundamental to the regulation of a relationship between a couple in a stable and committed partnership;
  3. The necessity for same-sex couples to 'refer repeatedly to the domestic courts to call for equal treatment in respect of each one of the plurality of aspects which concern the rights and duties between a couple....already amounts to a not-insignificant hindrance to the applicants' efforts to obtain respect for their private and family life'8;
  4. Official national statistics show that there are around one million gay people living in Central Italy;
  5. In the absence of marriage, same-sex couples have a particular interest in having the option of entering into a form of civil union or registered partnership;
  6. The case concerned the general need for legal recognition and the core protection of the applicants as same-sex couples rather than certain supplementary rights or consideration of the exact status conferred by recognition of same-sex couples. To the extent that the question in hand focused on core rights of the individual, the State's margin of appreciation was narrow;
  7. The world was showing a rapid development towards the legal recognition of same-sex couples;
  8. Official surveys of the Italian public's attitude demonstrated a popular acceptance of homosexual couples and support for their recognition and protection;
  9. The Italian Constitutional Court had highlighted the problem in the current legal system of having no available legal union for same-sex couples but had left the decision to Parliament: indeed, the President of the Constitutional Court had highlighted his regret at the inaction of the Italian Parliament in light of the Court's determination that 'same-sex couples [have] a fundamental right to obtain legal recognition, with the relevant rights and duties, of their union'.

Therefore, for all the reasons highlighted above, 'in the absence of a prevailing community interest being put forward by the Italian Government, against which to balance the applicants' momentous interests.....and in the light of domestic courts' conclusions on the matter which remain unheeded, the Court finds that the Italian Government have overstepped their margin of appreciation and failed to fulfil their positive obligation to ensure that the applicants have available a specific legal framework providing for the recognition and protection of their same-sex unions'9.

Updated conclusions

Oliari v Italy ('Oliari') is undeniably an important decision. The Italian State had failed timely and appropriately to enact legal protection for same-sex couples. Public opinion, judicial pronouncements and the relegation of basic rights left Italy with a narrow, if non-existent, margin of appreciation: and it had failed, therefore, to act in accordance with its duties under the ECHR. There were no obvious social or moral arguments raised by the Government in opposition to the very basic principle of recognising same-sex unions. For all those reasons, the rights of the same-sex couple to recognition of their union prevailed.

However, the territorial reach of this decision outside the Italian State may be limited and, probably, should not be overestimated. Oliari does not impose an obligation on all Member States of the Council of Europe to recognise same-sex unions, let alone demand access to marriage for same-sex couples. Indeed, the court in Oliari reiterated its view that, despite the gradual evolution of States on the matter of same-sex marriage (11 out of 47 Council of Europe States now permit equal marriage), there remains no obligation on States to grant access to marriage to same-sex couples10.

There is no doubt, however, that the Oliari decision adds to the pressure on Member States to regularly and actively consider whether legally recognised same-sex unions are compatible with, and attuned to, domestic law, constitutional interpretations, public opinion and progressive developments in other Member States; and further, to act accordingly if these influences require such action.

Nevertheless, the decision is arguably still to be made on a State-by-State basis, at least until the vast majority of Member States provide legal recognition of same-sex unions and, thereby, generate a significant and unimpeachable consensus which the ECtHR can no longer overlook. Take, for example, the situation in Russia. By 2008, 72% of the Russian population identified as Orthodox Christians. Surveys in 2013 demonstrated that almost 75% of Russians considered that homosexuality should not be accepted by society. Recent polls (in 2015) indicated that 80% of respondents did not support same-sex marriage. 41% of respondents to the same poll said that the State should 'eradicate homosexuality as a phenomenon and prosecute gays and lesbians'. A recent YouTube clip of two men (who were not gay or partners) walking hand-in-hand through the streets of Moscow and facing verbal and physical abuse is a unique – but perhaps indicative – example of current public opinion. The Russian legislature has enacted laws banning gay propaganda. There is strong support for the maintenance and development of 'traditional family values'.

If a case similar to Oliari, therefore, was brought against the Russian Government, the ECtHR would, it seems, be required to take into account the particularities of public, judicial and legislative opinion. The Russian state's margin of appreciation would arguably be broader than that of Italy given the broader community's views. How the ECtHR would react to such a strongly-held competing public and State opinion on the status of same-sex relationships is difficult to predict. Would the basic need of the proposed applicants to protection of their 'core' rights still prevail? Only time will tell. With each decision of the ECtHR imposing positive obligations on Member States and with every independent State decision to offer some level of legal recognition to same-sex unions, the arguments in favour of discrimination weaken. In Oliari, the Court was willing to substitute its own judgment in place of the national authority's and, despite the inordinate delays associated with ECtHR judgments, it did so in advance of the Italian Parliament. This decision was, in large part, in recognition of public, judicial, constitutional and legislative support for the principle of some level of legal protection for same-sex unions. The Court may not be so bold where the weight of such opinion is entrenched on the other side of the divide.

[1]   Twenty-four countries out of the forty-seven member states of the Council of Europe have already enacted legislation permitting same-sex couples to have their relationship recognised as a legal marriage OR as a form of civil union or registered partnership.
[2]   When the laws in Solvenia, Finland and Ireland come into force.
[3]   Application Nos. 18766/11 and 36030/11
[4]   Paragraph 185
[5]   Paragraph 120
[6]   Paragraph 123
[7]   Paragraph 126
[8]   Paragraph 171
[9]   Paragraph 185
[10] Paragraph 192