A unanimous decision of the European Court of Human Rights has once again said that homosexual marriage is not a human right under European law.
Almost one year after the U.S. Supreme Court’s decision in the Obergfell v. Hodges case, which imposed homosexual marriage on the entire United States, the European Court opted with caution, declining to impose homosexual marriage on the 47 nations that make up the Council of Europe.
The Chapin and Charpentier v. France decision is the latest in a succession of cases out of Finland, Italy, Austria, and France, where the Court shut the door to a Europe-wide human right to homosexual marriage, but perhaps not completely.
The European Court opted for a de-centralized approach. The issue of homosexual marriage is “subject to the national laws of the Contracting States,” the Court said, once again stating that there was no “European consensus” to overrule the plain meaning of the European Convention on human rights.
Article 12 of the Convention, which pertains to the right to marry and found a family, “cannot be interpreted as imposing an obligation on governments of the Contracting States to grant homosexual couples access to marriage,” the Court said, because it only “sanctions the traditional concept of marriage, that is the result of the union of a man and a woman.”
As in past decisions, the Court was less categorical and less deferential to European nations in its interpretation of the right to privacy and family life in Article 8 of the Convention.
The Court recognized that “States are still free (…) to restrict access to marriage to different-sex couples,” but it also reiterated that they must allow some form of “civil union” for homosexuals.
While it again recognized the margin of appreciation of states in designing homosexual civil union regimes, it alluded to the possibility that some countries might “go beyond its margin of appreciation in the choice of rights and obligations it established through civil unions.”
The Court let it be known that it would have been willing to flesh out what protections are required by article 8 for homosexual civil unions if any “indication” had been present that French civil union laws were not adequate.
This dictum leaves the door open to the creation of a de facto right to homosexual marriage through a European right to civil unions.
Even so, the ruling comes as a disappointment to homosexual activists, who have brought homosexual marriage cases to the European Court in recent years in the hope that the Court might overturn itself. This time round, after the Irish referendum last May, and on the heels of the U.S. Supreme Court decision last June, the unanimous ruling against a European right to homosexual marriage appeared like a particularly harsh denial, and a discouraging one.
The U.S. and European courts on occasion, and especially in decisions involving contentious issues involving homosexual relations, have tended to march in lockstep.
When the U.S. Supreme Court struck down Texas’ sodomy statute in the case of Lawrence v. Texas in 2003, Justice Kennedy cited, among other sources of law, a decision of the European Court. But the European Court did not reciprocate the favor this time round, and declined to follow the direction of the U.S. Supreme Court.
