Same-Sex Couples' Right to Marriage in EU Case Law

In its latest Annual Report on Human Rights and Democracy in the World, the European Council included the legalisation of same-sex marriage in the United States and Mexico among other “important milestones” in the “progress towards equality” for LGBTI individuals. At present time, twelve out of 28 EU Member States (namely, Belgium, Denmark, Finland, France, Ireland, Luxembourg, the Netherlands, Portugal, Spain, Slovenia, Sweden and the United Kingdom) recognise the right to marry for same-sex couples. Despite the increasing recognition of same-sex marriage among Member States, this matter continues to be highly contentious within the European Union. Many Eastern European countries that accessed the Union between 2004 and 2007 do not allow same-sex couples to marry nor to enter registered partnerships, while other Member States recognise same-sex unions exclusively through the latter institution. The latest domestic legislation on same-sex partnerships to enter into force so far was the Italian law no. 76 of 20 May 2016. The great diversity of legal solutions within the Union territory is also a reflection of the general divergence of public opinions towards the matter of same-sex marriage. A recent Eurobarometer survey highlights that while 61% of EU-28 nationals believe that it should be allowed throughout Europe, such a percentage varies significantly depending on the Member State. In particular, a strong opposition is observable within States that prohibit same-sex marriage, at rates consistently higher than 70%. In the light of this lack of a common European approach to same-sex marriage, institutions within both the European Union and the Council of Europe have been cautious to restrict States’ margin of appreciation in this area. Undoubtedly, the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) have established significant state obligations towards same-sex couples. Their right to equal treatment in relation to a range of human and fundamental rights – including the right to obtain some form of legal recognition of their union – is extensively and increasingly established by these courts. Nonetheless, the question of the inclusion of same-sex couples within the scope of the human right to marry remains unanswered to this day. Neither the Charter of Fundamental Rights of the European Union (EU Charter) nor the European Convention on Human Rights (ECHR) explicitly establish such a right. A strictly literal interpretation of Art. 12 ECHR excludes the inclusion of same-sex couples within its scope. This provision indeed recognises the right to marry and found a family to “men and women of marriageable age”. Such a reference is absent from Art. 9 of the EU Charter. This provision simply establishes the right to marry and to found a family in accordance with domestic laws governing the exercise of this right. The Explanations to the EU Charter, however, clarified that this wording was chosen to cover “cases in which national legislation recognises arrangements other than marriage for founding a family”, and that Art. 9 neither prohibits nor imposes the recognition of same-sex marriage. Despite the undeniable progress in the field of same-sex couples’ rights, the exclusion from the right to marry remains an apparently unbreakable ceiling in European case law. Yet, the importance of this matter is conveyed by the persisting submission of claims of discrimination on the grounds of sex orientation by same-sex couples excluded from this right, before domestic and supranational courts alike. This article aims to analyse this limitation, reasoning on possible future perspectives for the inclusion of same-sex couples within the scope of the human right to marry. To do so, this article will first critically review the gradual recognition of rights and entitlements to such couples in the case law of the CJEU and the ECtHR, with reference to several aspects of their lives together. A particular attention will be devoted to its assessment of the comparability of same-sex couples’ situation with that of different-sex couples. Second, it will move on to focus on the right to marry – analysing the reasons for the exclusion of same-sex couples from this basic human right. In this context, the comparability of civil unions or registered partnerships (as envisaged in the domestic jurisdictions of EU Member States) with the institution of marriage will be discussed. Third, this article will enquire on possible further developments in the case law of the CJEU and ECtHR on the matter, particularly in the light of the general principle of equality and non-discrimination... (segue)