Is Article 12 of the European Convention on Human Rights applicable to same-sex couples? (guest post)

Professor Paul Johnson, University of York (UK)

I published an article recently in the European Law Review about the history of the ‘right to marry’ enshrined in Article 12 of the European Convention on Human Rights. In that article I made the claim that the European Court of Human Rights (ECtHR) has consistently held that Article 12, which provides that ‘[m]en and women of marriageable age have the right to marry and to found a family…’,  is applicable only to marriage between persons of the opposite sex. This claim has caused some interesting discussion among colleagues who take the different view that the ECtHR has established that Article 12 is applicable to same-sex couples. In this post, I explain why I think Article 12 remains, according to the ECtHR, applicable only to opposite-sex couples.

The view that Article 12 is applicable to same-sex couples

Since 1986, the ECtHR has repeatedly and explicitly asserted an interpretation of Article 12 that has excluded same-sex couples from the enjoyment of the right to marry. In Rees v the United Kingdom, the ECtHR stated that

the right to marry guaranteed by Article 12 … refers to the traditional marriage between persons of opposite biological sex. This appears also from the wording of the Article which makes it clear that Article 12 … is mainly concerned to protect marriage as the basis of the family (§ 49).

Since advancing this interpretation of Article 12, the ECtHR has gone on to determine that founding a family is not a condition of the right to marry and that the inability of any couple to conceive or parent a child cannot be regarded as per se removing their enjoyment of the right to marry. Moreover, the ECtHR has held that the reference to ‘men and women’ in Article 12 can no longer be taken to refer to a determination of gender by purely biological criteria. However, when the ECtHR evolved its interpretation of Article 12 in this way in Christine Goodwin v the United Kingdom – in order to recognise the right of a post-operative transsexual to marry an opposite-sex partner – it was careful to reiterate that Article 12 ‘refers in express terms to the right of a man and woman to marry’ (§ 100). 

In Schalk and Kopf v Austria the applicants, a same-sex couple who complained that the refusal by Austrian authorities to allow them to contract marriage violated their Article 12 rights, directly challenged the ECtHR’s interpretation of Article 12. The applicants argued that ‘the wording [of Article 12] did not necessarily imply that a man could only marry a woman and vice versa’ (§ 55).  The applicants explicitly contested the ECtHR’s assertion that the words ‘men and women’ limit the right to marry to relationships between a man and a woman and, in doing so, submitted that Article 12 was applicable to individuals of marriageable age who wished to contract marriage with a person of the same sex. In its assessment of the merits of the applicants’ Article 12 complaint the ECtHR made the following statement:

Turning to the comparison between Article 12 of the Convention and Article 9 of the Charter [of Fundamental Rights of the European Union], the Court has already noted that the latter has deliberately dropped the reference to “men and women” … The Commentary of the Charter … confirms that Article 9 is meant to be broader in scope than the corresponding Articles in other human rights instruments … At the same time, the reference to domestic law reflects the diversity of national regulations, which range from allowing same-sex marriage to explicitly forbidding it. By referring to national law, Article 9 of the Charter leaves the decision whether or not to allow same-sex marriage to the States … Regard being had to Article 9 of the Charter, therefore, the Court 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. Consequently, it cannot be said that Article 12 is inapplicable to the applicants’ complaint (§ 60-61, emphasis added).  

Many commentators have derived from this statement the view that the ECtHR has established that Article 12 is no longer applicable only to opposite-sex couples and, consequently, that the right to marry is applicable to same-sex couples.

My view on the (in)applicability of Article 12

Whilst the ECtHR’s interpretation of Article 12 in Schalk and Kopf v Austria is significant, I do not think it definitively establishes that Article 12 is applicable to same-sex couples. I reach this conclusion for three reasons, which I outline below.

My first reason for concluding that the ECtHR has not definitively established the applicability of Article 12 to same-sex couples is borne from a reading of the judgment in Schalk and Kopf v Austria as a whole. Whilst in Schalk and Kopf v Austria, the ECtHR stated that ‘it cannot be said that Article 12 is inapplicable’ (§ 61) it did so only in respect of one of three main issues that it considered. The first of these issues was whether a textual interpretation of Article 12 could lead to the view that the right to marry extended to same-sex couples. The ECtHR resolutely concluded that it could not because, ‘in contrast [to] all other substantive Articles of the Convention [that] grant rights and freedoms to “everyone” or state that “no one” is to be subjected to certain types of prohibited treatment’, Article 12 grants the right to marry to ‘men and women’ and this ‘choice of wording … must thus be regarded as deliberate’ (§ 55). Moreover, the ECtHR stated that when interpreting this deliberate choice of wording, ‘regard must be had to the historical context in which the Convention was adopted [when] marriage was clearly understood in the traditional sense of being a union between partners of different sex’ (§ 55). The second issue that the ECtHR considered was whether, in accordance with it case-law which establishes that the Convention is a living instrument which is to be interpreted in the light of present-day conditions, Article 12 could be read as granting same-sex couples access to marriage. Again, the ECtHR resolutely rejected this idea on the basis that there is ‘no European consensus regarding same-sex marriage’ (§ 58). It is against this background, then, that the ECtHR approached the third issue it considered, which was whether Article 9 of the Charter of Fundamental Rights of the European Union had any bearing on how the right to marry contained in Article 12 should be read. In respect of this issue, as I noted above, the ECtHR concluded that because Article 9 of the EU Charter has omitted the words ‘men and women’ from the right to marry that it would no longer consider that this right ‘must in all circumstances be limited to marriage between two persons of the opposite sex’ (§ 61). My interpretation of this aspect of the judgment is that it establishes that because Article 9 of the EU Charter permits (but does not require) EU states to grant same-sex couples access to the right to marry that, in the event of a state permitting same-sex marriage, the right to marry in Article 12 may be engaged. This is unsurprising because, as Tobias Lock has explained, there is now an established ‘presumption that the protection of human rights in [European] Community law is equivalent to that under the Convention’ and there exists a ‘continued silent cooperation and mutual respect between the ECtHR and the ECJ [European Court of Justice]’. However, in my view the ECtHR’s interpretation of the relevance of Article 9 of the EU Charter cannot be regarded as establishing that, in general terms, complaints relating to same-sex marriage will fall within the scope of Article 12. This is not least because for those individuals in states contracted to the Convention that are not members of the EU, Article 9 of the EU Charter has no relevance.  

My second reason for concluding that the ECtHR has not definitively established the applicability of Article 12 to same-sex couples is based on an analysis of the language used by the ECtHR in Schalk and Kopf v Austria. Whilst many have asserted that the judgment establishes the applicability of Article 12 to same-sex couples, the ECtHR did not explicitly state this. What the ECtHR actually said in Schalk and Kopf v Austria was that ‘it cannot be said that Article 12 is inapplicable’ (§ 61). Whilst the ‘double negative’ in this statement could be read in such a way to affirm the applicability of Article 12 – which is how it is often read – it could also be read to mean that the issue of the applicability of Article 12 to same-sex couples is ‘inconclusive’. There is support for such an interpretation from reputable sources. For example, the Registry of the ECtHR, in its summary of the judgment in Schalk and Kopf v Austria, has stated that, because the absence of a reference to ‘men and women’ in the EU Charter allowed the ECtHR to reach the ‘conclusion that the right to marry must not in all circumstances be limited to marriage between two persons of the opposite sex’, ‘[i]t could, therefore, not be concluded that Article 12 did not apply’. This suggests, in my view, that the ECtHR has, at best, ‘not ruled out’ the applicability of Article 12 to same-sex couples rather than definitively establishing that Article 12 is applicable to them. Such a view is supported by the interpretation offered by former President of the ECtHR, Nicolas Bratza, who has stated that the judgment in Schalk and Kopf v Austria established that ‘in the light of Article 9 of the [EU] Charter, it could not be ruled out … that Article 12 of the Convention could apply to same-sex marriage if the latter was recognised in domestic law’ (p.171). Again, reaching the conclusion that the applicability of Article 12 to same-sex couples ‘could not be ruled out’ and that Article 12 ‘could apply’ is not the same as definitively determining that Article 12 applies to same-sex couples.

My final reason for concluding that the ECtHR has not definitively established the applicability of Article 12 to same-sex couples is based on the existence of five years of ECtHR jurisprudence since Schalk and Kopf v Austria. During this time the ECtHR, and in particular its Grand Chamber, has failed to endorse the view adopted in Schalk and Kopf v Austria about the potential applicability of Article 12 to same-sex couples in light of Article 9 of the EU Charter. On the contrary, the Grand Chamber has twice taken the opportunity to reiterate the limits of Article 12 in respect of same-sex couples. In X and Others v Austria, which did not concern a complaint about an inability to marry but did relate to discrimination created by reserving certain rights and benefits to (opposite-sex) married and unmarried couples, the Grand Chamber took the opportunity to reiterate that ‘Article 12 of the Convention does not impose an obligation on the Contracting States to grant same-sex couples access to marriage’ (§ 106). In Hämäläinen v Finland, which concerned a complaint by a post-operative transsexual about the legal requirement to end her opposite-sex marriage in order to have her acquired gender legally registered (in light of the fact that Finland did not recognize marriage between two individuals with the same legal gender) the Grand Chamber stated:

The Court reiterates that Article 12 of the Convention is a lex specialis for the right to marry. It secures the fundamental right of a man and woman to marry and to found a family. Article 12 expressly provides for regulation of marriage by national law. It enshrines the traditional concept of marriage as being between a man and a woman … While it is true that some Contracting States have extended marriage to same-sex partners, Article 12 cannot be construed as imposing an obligation on the Contracting States to grant access to marriage to same-sex couples (§ 96).

Neither of these Grand Chamber judgments, which rely on the judgment in Schalk and Kopf v Austria, refer to the potential applicability of Article 12 to same-sex couples. That is perhaps understandable in X and Other v Austria, because no Article 12 complaint was made. However, in Hämäläinen v Finland, which like Schalk and Kopf v Austria concerned a complaint from an individual in an EU state, the ECtHR’s silence on the applicability of Article 12 is striking. This is especially so because the applicant asserted that ‘Article 12 of the Convention would apply’ (§ 94) to her complaint. The ECtHR’s response to this was to state that, having examined the complaint under Article 8, no separate issue arose under Article 12. In doing so, the majority of the Grand Chamber implicitly rejected the claim that Article 12 was applicable to a complaint about a same-sex couple’s inability to be married. 

Why applicability matters

In a recent discussion, Professor Robert Wintemute reminded me that it would be an important ‘symbolic step’ if the Grand Chamber of the ECtHR definitively established the applicability of Article 12 to same-sex couples. Doing so would not be equivalent to recognizing that Article 12 imposes on Contracting States an obligation to provide same-sex couples with access to marriage. However, definitively establishing that complaints by same-sex couples fall within the scope of Article 12 would provide the basis on which same-sex couples could make the case that Contracting States should be obliged to grant them access to marriage. Same-sex couples could then assert that a prohibition of same-sex marriage (which exists in the majority of Council of Europe states) amounted to a violation of Article 12 because, contrary to what is permitted according to established ECtHR jurisprudence, such a prohibition restricts the right to marry in such a way or to such an extent that the very essence of the right is impaired and deprives a category of persons of full legal capacity of the right to marry with the partners of their choice (O'Donoghue and Others v the United Kingdom, § 82-83). In other words, clearly establishing that Article 12 applies to same-sex couples provides the basis on which same-sex couples can at least articulate a claim for the right to marry. 

Recognizing the current limitations of ECtHR jurisprudence on the applicability of Article 12 to same-sex couples is important, not least because opponents of same-sex marriage are already exploiting this gap. For example, Gregor Puppinck, the Director of the European Centre for Law and Justice – a ‘Christian-inspired organisation’ committed to preventing same-sex couples gaining the right to marry – has argued that the Grand Chamber judgment in Hämäläinen v Finland sends a ‘clear statement [that] tends to end the debate for now and for the future’ about the right of same-sex couples to marry. Because I passionately believe that same-sex couples should have the same human right to marry as opposite-sex couples I want the ECtHR to make a clear statement that the debate is not over. One simple way for the ECtHR to do this is to explicitly state that Article 12 applies to same-sex couples. If it does this, it will bring same-sex couples within the scope of Article 12 and provide a solid foundation on which they can advance complaints about the prohibition of same-sex marriage that exists in most European states. If Article 12 is definitively established to be applicable to same-sex couples, then same-sex couples can seek to persuade the ECtHR that a blanket ‘ban’ on same-sex marriage amounts to a violation of their human right to marry. 

For further readings, see: P. Johnson, ‘“The Choice of Wording must be Regarded as Deliberate”: Same-sex Marriage and Article 12 of the European Convention on Human Rights’, EL Rev, 2015, 2: 207-224.