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Back to Section One | Back to Arts & Entertainment
posted Friday, March 23, 2012 - Volume 40 Issue 12
Marriage not a human right, European court says
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Marriage not a human right, European court says

by Mike Andrew - SGN Staff Writer

In a blow to marriage equality in Europe, the European Court of Human Rights ruled on March 20 that marriage is not a human right, at least not for same-sex couples.

'The European Convention on Human Rights does not require member states' governments to grant same-sex couples access to marriage,' the Court said in its decision.

The judges added that couples who are in legally recognized relationships but are not married do not enjoy the same status as married couples.

The case involved two Lesbians who are civil partners under French law.

Valerie Gas and Nathalie Dubois wished to adopt Dubois's biological child, but were unable to do so because France allows only married couples to adopt, and only allows same-sex couples to form civil partnerships, not marriages.

They sued in the European Court, claiming that the European Convention on Human Rights includes clauses that prohibit discrimination and protect privacy and family life.

The court, based in Strasbourg, France, denied their claim, saying that since the couple's legal status as civil partners is not the same as a married couple, they do not have the same rights.

'With regard to married couples, the court considers that in view of the social, personal, and legal consequences of marriage, the applicants' legal situation could not be said to be comparable to that of married couples,' the court ruled.

This applies to both same-sex and opposite-sex civil partners, the court said, and therefore does not discriminate against Gas and Dubois as Lesbians.

In its latest ruling, the court referred back to a 2010 case, Schalk and Kopf v. Austria, in which it said that governments may offer same-sex couples equal rights to marriage, but were not required to do so.

According to Robert Wintemute, professor of human rights law at King's College London, the court's ruling in Schalk actually opens opportunities for recognition of same-sex marriage.

'Although the court ruled that Article 12 of the Convention did not yet impose an obligation on European governments to allow same-sex couples to marry, the court changed its interpretation of Article 12, saying that it 'would no longer consider that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two persons of the opposite sex,' Wintemute told Pink News in a 2011 interview.

'When more Council of Europe countries than the current seven (out of 47) allow same-sex couples to marry, the court will be willing to consider ordering all of them to do so.'

Currently marriage equality is on the agenda in Britain, where Prime Minister David Cameron's government has promised to enact a new marriage law before the next election.

Some interpretations of the European court's ruling may impede Cameron's efforts, however.

Neil Addison, a specialist in discrimination law, told the Daily Mail newspaper that the court decision would have the effect of forcing churches to marry same-sex couples, even if they are opposed to same-sex marriage.

'Once same-sex marriage has been legalized, then the partners to such a marriage are entitled to exactly the same rights as partners in a heterosexual marriage,' Addison said.

'This means that if same-sex marriage is legalized in the U.K., it will be illegal for the government to prevent such marriages happening in religious premises.'

If Addison's analysis is correct, the court's ruling would shred Cameron's guarantee to religious critics of marriage equality that no church would be forced to perform same-sex marriages.

Church of England lawyers have already warned that if the government's marriage bill goes forward, it is likely to force churches to fall into line and perform the wedding ceremonies.

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