There is no right to same-sex marriage or civil partnerships under the European Convention of Human Rights, the 
European Court of Human Rights has found in a landmark decision [1].
The decision is a surprise because of the liberal drift of the court in recent years. Recently it found against Italy because crucifixes can be displayed on the walls on the state classrooms there. This decision caused a very strong backlash.
The court also found in favour of Senator David Norris in 1988 when it ruled that Ireland’s then law criminalising homosexual conduct was in violation of the Convention.
The case ruled on yesterday was taken by two homosexual men against Austria on the grounds that it did not permit same-sex marriage. The Court ruled that the right to marry under Article 12 of the Convention applied only to men and women.
In a press statement, the Registrar for the Court said that it found that “there was no consensus regarding same-sex marriage” among the 47 member-states of the Council of Europe. Only six permit same-sex marriage and a minority permit civil partnerships.
It also examined the provision in the Charter of Fundamental Rights of the European Union and its reference to marriage.
It noted that while the relevant Article did not include a reference to men and women, which would allow states to provide for same-sex marriage it left the decision regarding same-sex marriage to regulation by member-states’ national law.
The Court also emphasised that national authorities were “best placed to assess and respond to the needs of society in this field, given that marriage had deep-rooted social and cultural connotations differing largely from one society to another”.
The Court next examined Article 8, which governs the issues of “private life” and “family life”.
Based on what they termed an “emerging consensus” of societal attitudes towards same-sex couples, the Court found that a stable homosexual couple could fall within the notion of “family life”.
However, because the Convention’s Articles must be read in conjunction and not in isolation, and Article 12 did not include an obligation on the part of Member States to provide access to marriage for same-sex couples, Article 8, in conjunction with Article 12, could not be interpreted as including a right to “same-sex marriage”.
The plaintiffs also argued that because Austria had provided for legal recognition of same-sex relationships in its Registered Partnership Act (RPA), refusing homosexuals access to marriage amounted to discrimination.
The Court first noted that despite the “emerging consensus” towards legal recognition of same-sex relationships, a majority of States still had not given any legal recognition to homosexual relationships. Therefore, under the Convention, there is no current obligation for Member States to provide legal recognition to same-sex couples, such as a RPA.
The Court further held that even when a Member State provides such recognition, as Austria had done, there is no obligation to provide recognition on the same level as marriage. Thus, Austria was permitted to deny same-sex couples the ability to adopt a child, for example.
National and European pro-family groups have welcomed the Court’s decision.
Reacting to the decision Iona Institute director, David Quinn said: “This is a victory for common sense. The court has accepted the plain meaning of Article 12 which recognises a right to marriage, but only as traditionally understood.”
Gregor Puppinck, Director of the European Centre for Law and Justice, said, “We take this case as a victory of our long standing efforts. The states cannot be bound to accept new obligations that are not in the Convention and moreover are contrary to the Convention.”