Universitat Hamburg Fakultat Wirtschafts-? und Sozialwissenschaften M. A. European Studies Right to Same-? Sex Marriage Under Article 8 ECHR Melek Gunay Hamburg, 2013 Table of Contents 1. Introduction …………………………………………………………………………………………………………………. 3 2. Definition of ‘sexual minorities’ ………………………………………………………………………………… 5 3. The right of same-? sex marriage and the ECHR ………………………………………………………… 6 4. Case Studies …………………………………………………………………………………………………………………. 8 4. 1. Rees v UK ……………………………………………………………………………………………………………………………. 8 4. 1. 1. Facts of the Case …………………………………………………………………………………………………………………………. 8 4. 1. 2. Role and importance of the case for the case law of ECHR …………………………………………….. 11 4. 2. Cossey v UK …………………………………………………………………………………………………………………….. 12 4. 2. 1. Facts of the Case ……………………………………………………………………………………………………………………….. 12 4. 2. 2. Role and importance of the case for the case law of ECHR …………………………………………….. 14 4. 3. Christine Goodwin v UK …………………………………………………………………………………………………. 14 4. 3. 1. Facts of the Case ………………………………………………………………………………………………………………………. 14 4. 3. 2. Role and importance of the case for the case law of ECHR …………………………………………….. 17 4. 4. Schalk and Kopf v. Austria …………………………………………………………………………………………….. 17 4. 4. 1. Facts of the Case ……………………………………………………………………………………………………………………….. 17 4. 4. 2. Role and importance of the case for the case law of ECHR ……………………………………………. 19 5. Conclusion ………………………………………………………………………………………………………………….. 19 6. Bibliography …………………………………………………………………. ………………………………………….. 22 2 1. Introduction Although demands for rights of homosexuals, transsexuals and transvestites as well as their visibility increased in recent years, sexual diversity is a part of human nature, and therefore it is as old as human history. However, rights of sexual minorities have become n issue only for 30 years. In 1981, Jeffrey Dudgeon who is 35 years old shipping clerk and a homosexual, resident in Northern Ireland, applied to European Court of Human Rights (ECtHR) and complained about Northern Ireland’s laws which had the effect of making certain homosexual acts between consenting adult males criminal offences (Dudgeon v. The United Kingdom, 1981). In its judgment, the ECtHR considered the legal legislation criminalizing consensual same-? sex relationships, as interference to private life and condemned the United Kingdom. This judgment was a milestone and formed the basis of future decisions regarding sexual inorities’ rights. Since then the ECtHR handed down many cases that have sue by sexual minorities on the basis of Article 8, Article 12 and Article 14 of European Convention on Human Rights (ECHR). The applications complaining the intervention to private life usually have high chance of success. However sexual minorities moved their demand of right a step further; they are asking for their right to marry. Right to marry is a fundamental human right and regulated under Article 12 of the ECHR. However, unlike heterosexuals, homosexuals do not allowed legally marry in many countries. Thus, the right to marry has become one of the most ctive areas of the sexual minorities’ rights. They have succeeded to make significant progress in this right. Today there are 9 countries European-? wide that allow same-? sex marriage. Lastly, in May 2013, France became the 9th European-? wide (14th worldwide). Even though a growing number of countries have recognized same-? sex marriages in recent years, when we consider that there are more than 45 countries in Europe, the number of these countries that allow same-? sex marriage is still exiguous. This is very clear that there is not a consensus about the same-? sex marriages among the countries. This paper aims to clarify
ECtHR’s perspective for same-? sex marriages and it will try to answer if the ECtHR defines the same-? sex marriage as a human right or not. In the 3 first section the concept of ‘sexual minorities’ will define and in the second section the same-? sex marriage as a human right will analyze under the ECHR. Then, in order to see the developments in the case law and analyze whether the case law defines the same-? sex marriage as a human right, four different cases will evaluate. 4 2. Definition of ‘sexual minorities’ There no universally agreed definition of the concept of `minority?. However, the definition offered by Francesco
Capotorti, Special Rapporteur of the United Nations Sub-? Commission on Prevention of Discrimination and Protection of Minorities, established a general framework for the concept. According to Capotorti a minority is a group numerically inferior to the rest of the population of a State, in a non-? dominant position, whose members -? being nationals of the State -? possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language (United Nations, 2010). In order o define minority, many criteria such as nationality, ethnicity, linguistic origin, religious identity, sexual orientation, colour, immigration, birthplace, citizenship could be used. However, any of them is not adequate to define the concept of ?minority? alone. There are also other definitions of ?minority? that are accepted by many sociologists. Bask? n Oran defines minorities as groups of people who are non-? dominant and differ in the society (Oran, 2008). Most of the definitions of minority contains some common criteria; to be numerically small, to be in a non-? dominant position, to be a citizen, to have ethnic, religious r linguistic characteristics and differentiation being in a sense of solidarity. However, most definition do not refer to sexual minorities. In this context Eric Heinze’s definition of minorities as a group of people who are treated differently and unequally by the rest of society due to their physical or cultural characteristics and therefore they consider themselves as the object of collective discrimination (Heinze, 1995), is a wide-? ranging definition that covers the minorities experiencing oppression and discrimination because of their sexual orientation or gender identity in his society. Consequently, the concept of ‘sexual inority’ refers to individuals that are different from the majority with their gender roles and patterns, sexual orientation or gender identity; namely gays, lesbians, bisexuals and transsexuals. 5 3. The right of same-? sex marriage and the ECHR Same-? sex couples want to marry for similar reasons as everyone. They want to make a lifetime commitment with the person that they love, they want to establish a family, to share nice and bad days, to support each other, to support their family, to fell the convenience of being recognized as a couple, etc. However, except 14 states all over the World, they don’t have the opportunity to arry. Some of these couples are brave enough to fight with the entrenched ideas of the public and obsolete legal provisions of their national law. After consuming all domestic remedies, when they cannot ensure any development concerning their demands, the ECtHR is one of the last authorities to apply and demand for their rights. However in terms of ECHR, the relevant articles do not have very positive wording for them. Thereby, they are expecting ECtHR to establish a case law that interprets the relevant articles of ECHR in a wider context. Article 8, Article 12 and Article 14 of the ECHR are the relevant articles that the applicants ut forward before the Court for the recognition of same-? sex marriages. Article 8 of the ECHR protects individual’s private and family life and constitutes the legal base of the discussions about ‘privacy’ in contracting countries. Article 8 states that ‘‘1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-? being of the country, for the revention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. ’’ (European Convention on Human Rights, 1950). Article 8 ensures individuals private life to remain private except some specific circumstances. Through different decisions, ECtHR has defined the concept of private life in a broader context. ECtHR decided that the concept of private life includes not only individual’s inner-? life and family life but also his/her relationships with other individuals and outside the world, individual’s business or professional activities and his/her personal relationships hat are developed during these business activities and individual’s emotional relationships that is necessary for the development of individual’s own personality (Misthal, 1998). Although ECtHR has expanded the border of the rights recognized in Article 8 through its decisions, these rights are not absolute. Through its different decisions ECtHR has limited these rights. 6 However the most important limitation exists in the Article itself. Article 8(2) limits these rights in case of interference to these rights by a public authority, when this interference is in accordance with the law, it has a legitimate aim, or it is necessary in a emocratic society (in the interests of national security, public safety, economic well-? being of the country, etc. ) or for the protection of the rights and freedoms of others the interference may justify. Article 12 of the ECHR grants individuals right to marry and found a family. The Article states that ‘‘Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right. ’’ (European Convention on Human Rights, 1950). The wording of the Article limits the right. The ‘marriageable age’ wording excludes the children and ‘Men and women’ wording which is
