European Court of Human Rights ruling: European nations do not have to allow same-sex marriage

The European Court of Human Rights (ECHR) has affirmed that there is no right to marriage or registered partnership for homosexuals under the European Convention of Human Rights.

Seven judges at the European court ruled in a majority 4-3 decision ruled that two Austrian men denied permission to wed were not covered by the guarantee of the right to marry enshrined in Europe's human rights convention and that the Austrian government had not discriminated against them by not allowing same sex marriage.

The Court reiterated that the right to marry is granted only to “men and women”, as set forth in Article 12 of the Convention. The Court observed that among Council of Europe member States “there is not yet a majority of States providing for legal recognition of same-sex couples. The area in question must therefore still be regarded as one of evolving rights with no established consensus” (§105). Consequently, the Court recognized that “national authorities are best placed to assess and respond to the needs of society in this field” (§62), and “States must also enjoy a margin of appreciation in the timing of the introduction of legislative changes”. Because “marriage has deep-rooted social and cultural connotations which may differ largely from one society to another, the Court reiterates that it must not 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” (§62) and “that States are still free, under Article 12 of the Convention as well as under Article 14 taken in conjunction with Article 8, to restrict access to marriage to different-sex couples.”(§108)

As the careful wording of the decision implies, the Court keeps very open a possible recognition in the near future of a “human right” to legal recognition of same-sex couples. The Court says that States are “still free” to restrict access to marriage to different-sex couples, because there is not “yet” a majority of States providing for legal recognition of same-sex couples, that this question must therefore “still” be regarded as one of “evolving rights” that the  States enjoy a margin of appreciation limited to “the timing” of the legal recognition, and that the Court should therefore not “rush” to substitute its own judgment in place of that of the national authorities.

In other words, the Court prudently renounced, although only for the moment, to impose to National States the legal recognition of same-sex couples.

Gregor Puppinck, Director of the European Centre for Law and Justice (ELCJ) interprets this prudent renouncement in the light of the current “rebellion” of a dozen Member States in the Italian Crucifix case (Lautsi v. Italy) against a tendency of the Court to impose new “post-modern” Human Rights that contradict the underlying values of the Convention. “Either way, the ECLJ take this ruling as an extremely important victory of our long standing efforts. The states cannot be bound to accept new obligations that are not in the Convention and moreover that are contrary to the Convention.”