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The Legal Recognition of Same-Sex Couples in Europe and the Role of the European Court of Human Rights

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The Legal Recognition of Same-Sex Couples in Europe and the Role of the European Court of Human Rights 83 The Legal Recognition of Same-Sex Couples in Europe and the Role of the European Court of Human Rights Jens M. Scherpe1 I. Introduction – It’s Been a Long Road... The legal regulation of family relationships same-sex couples in an increasing number has long been formulated around a “tradi- of jurisdictions, and in others, a form of reg- tional” notion of the family as a unit com- istered partnership is available or de facto prising a heterosexual married couple who relationships of same-sex couples are rec- conceive children within wedlock. This has ognised. But even in Europe, particularly in resulted in the protection mechanisms of the Eastern and South-Eastern Europe, there law focusing on such family units, with other are still many jurisdictions where there is no family forms such as, for example, same-sex legal recognition of same-sex relationships. couples, unmarried couples, couples who are However, in Schalk and Kopf v Austria2 the unable to conceive naturally and single par- European Court of Human Rights (ECtHR) ents failing to have their family relationships recognised that same-sex couples enjoy the adequately recognised and protected in law. right to “respect for family life” protected This often included, at least initially, not rec- by Article 8 of the ECHR, and this article ar- ognising “non-traditional” families’ rights to gues that this mandates some form of legal respect for their family life under Article 8 of recognition of same-sex relationships by all the Convention for the Protection of Human contracting states of the ECHR and paves Rights and Fundamental Freedoms (ECHR). the way for equality in the family realm for However, in recent decades there has been same-sex couples. progress in dispelling the traditional notion of the family and in adapting the law to the II. Legal Recognition through Legislation modern realities of family life. One example and Litigation – Europe and Beyond of such progress in motion relates to the le- gal status of homosexual couples in Europe, Legal recognition of same-sex relation- which is the focus of this article. ships3 in Europe began in the Nordic Coun- tries.4 In 1987, de facto/cohabitation rela- Until the end of the 1980s there was simply tionships of same-sex couples were given no legal recognition of same-sex relation- a similar legal status to those of opposite- ships in the European jurisdictions. That this sex couples in Sweden.5 However, at the has changed is, to a large extent, due to the same time, it was not felt that there was a effort and persistence of many organisations need (or an opportunity) for a formalisa- and individuals. Today, marriage is open to tion of those relationships.6 A “legal quan- The Equal Rights Review, Vol. Ten (2013) 84 tum leap” followed in 1989 with the intro- tered partnership for same-sex couples, duction of the registered partnership for and in Croatia recognition of a de facto same-sex couples in Denmark.7 Other ju- union is possible. risdictions gradually followed Denmark’s lead, although the legal rules and technical Europe is not unique on this issue. Outside approach of the registered partnership re- of Europe, there is similar diversity in the gimes that were introduced differed (and recognition of same-sex relationships. In still differ) significantly from jurisdiction the Americas, for example, Canada (2005),15 to jurisdiction. The next step in this legal Argentina (2010),16 several US states17 and evolution was the opening up of marriage Mexico City (2010) and the Mexican state of in a number of jurisdictions, of which the Quintana Roo (2011) allow same-sex mar- Netherlands was the first in 2001,8 fol- riages, and in many other jurisdictions reg- lowed by Belgium (2003),9 Spain (2005),10 istered partnerships are possible. However, Norway (2009),11 Sweden (2009),12 Iceland at the same time several jurisdictions have (2010)13 and Portugal (2010).14 changed their statutes and constitutions to the effect that marriage is only possible be- However, in many European countries, tween a man and a woman, thus precluding particularly in Eastern Europe, but also, same-sex marriages. for example, in Greece and Italy, there is strong opposition to the legal recognition It is interesting to note that in the European of same-sex relationships. Interestingly, jurisdictions18 the broader legal recognition the traditional “dividing lines” of family of same-sex couples was generally brought law no longer seem to apply. It no longer about through legislation, as a result of the ef- seems possible to distinguish between the forts of organisations and political parties.19 progressive North and conservative South By contrast, outside of Europe, litigation as, for example, Spain and Portugal have based on constitutional and human rights opened up marriage to same-sex couples. was, more often than not, the way legal rec- Likewise, a division which is based upon ognition of same-sex couples was effected, the predominant religious affiliation in as, for example, in many US states and also a given country, i.e. between somewhat in Brazil,20 Canada,21 Columbia,22 and South more liberal Protestant and more con- Africa.23 Here, individual litigants (usually servative Catholic countries, does not supported by organisations), played a pivot- seem appropriate any more. Apart from al role. In European jurisdictions where the Spain and Portugal (as mentioned above), legislative route has not fostered progress countries like Belgium (which also per- and there is still no or incomplete recogni- mits marriage of same-sex couples) and tion of same-sex couples, litigation based on the Republic of Ireland (having recently national constitutions and the ECHR can, and introduced civil partnership for same-sex presumably will, be utilised to bring about couples) invalidate such a division along legal reform.24 religious lines. If there is such a thing as a dividing line in Europe then, today, it III. Different Forms of Recognition is really located between East and West, although one should not forget that, for The approach to the legal recognition of example, Hungary, Slovenia and the Czech same-sex couples taken by the various Eu- Republic have introduced a form of regis- ropean jurisdictions that have provided such The Equal Rights Review, Vol. Ten (2013) 85 recognition can be broadly split into three 1. “Inferior” Relationship? categories: regimes in which provision for formal recognition of same-sex relationships In many jurisdictions same-sex relationships is “inferior” to marriage; those in which it were deemed to be fundamentally different is more or less “functionally equivalent” to from opposite-sex relationships and in some marriage, i.e. marriage by a different name; ways “inferior”. Consequently, when a legal and those in which marriage is available to framework for same-sex couples was intro- same-sex as well as opposite-sex couples. duced, the structure looked as follows: Opposite-sex relationship Same-sex relationship Marriage Registered partnership Informal relationship The differential treatment is apparent: being discriminated against because the al- same-sex couples cannot marry and the legal ternative to marriage, the “inferior” legal framework which is open to them is not of framework, is not open to them. This “prob- the same “quality” as marriage that is avail- lem” was pre-empted, for example, in France able for opposite-sex couples. Moreover, this and also originally in the Netherlands and approach is also vulnerable to challenge Belgium by the new legal regime also being from opposite-sex couples who – with a good open to opposite-sex couples.25 The struc- chance of success – could claim that they are ture then looks as follows: Opposite-sex relationship Same-sex relationship Marriage Registered partnership Informal relationship Here the differential treatment of same-sex 2. Functional Equivalent couples is still blatantly obvious, as oppo- site-sex couples can choose between two If registered partnership is designed to be ways to formalise their relationship whereas the functional equivalent27 of marriage, the same-sex couples have only one option. The structure looks like this: Netherlands and Belgium therefore later also opened up marriage to same-sex couples.26 Opposite-sex relationship Same-sex relationship Marriage Registered partnership Informal relationship The Equal Rights Review, Vol. Ten (2013) 86 If (and only if) the legal rules are indeed the a form of registered partnership. Despite same,28 the only remaining difference is the the name, what is being offered by the state name of the legal construct. This might ap- through marriage is merely a legal frame- - work. Everything that extends beyond the le- cance and thus fall beyond the law because, gal framework is cultural and social and thus pear to be a difference without legal signifi also beyond immediate state regulation (al- such. But it does have an immense social and though admittedly the state’s legal rules can, culturalat first glance, content. a name “Marriage” has no legalis much content more as and will, have an impact upon the social and than a mere legal construct. Societal tradi- cultural perception of the institution). tions and expectations are associated with marriage – not all of which are necessarily In any event, the legal framework of marriage positive. Thus, for some couples, irrespective of their genders, it would be unthinkable to Each and every reform of that legal frame- enter into a marriage, because for them, mar- workhas changed has been significantly accompanied over by the fears centuries. that the riage represents the subjugation of women new law would change (or even destroy) the and male domination. For others, marriage “nature” of marriage forever, whatever that is the ultimate social commitment to another is deemed to be.
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