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European law not required to grant marriage rights to same-sex couples, court rules

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  1. Juris Lavrikovs 25 Jun 2010, 5:07pm

    It would be naive to expect the European Court of Human Right at this stage to expect to oblige European countries to introduce same-sex marriage. The Court, especially on such still controversial issues, always makes reference to so-called European consensus and in this case such does not exist, only 7 European countries have such law. However, this judgement is extremely important to same-sex partners as for the first time ever, the Court stated same-sex partners are covered by ‘family life’ as referred in Article 8 of the European Convention of Human Rights. So far all cases, even the positive, for LGBT people were viewed under the ‘private life’, so this judgement is truly historical in this sense. Second important detail is that the Court made it clear that the Convention’s article on marriage should not always be interpreted as between man and woman. In longer term, this is very significant judgement for LGBT people in Europe. More details in our media release: http://ilga-europe.org/home/news/for_media/media_releases/european_court_of_human_rights_a_cohabiting_same_sex_couple_living_in_a_stable_de_facto_partnership_falls_within_the_notion_of_family_life_just_as_the_relationship_of_a_different_sex_couple_in_the_same_situation_would

  2. Thank you for that link, Juris. What you’ve said made me feel a little less disappointed, but I still find it hard to understand why LGBT people can be discriminated against in this way :(

  3. de Villiers 25 Jun 2010, 9:03pm

    Gay marriage is a matter of politics not law. Politics and not litigation is the appropriate route.

  4. Juris Lavrikovs 25 Jun 2010, 9:24pm

    Unfortunately the European Court of Human Rights is very much influence by the situation of the Council of Europe member states. Its hard to imagine that the Court would go against vast majority (40 of CoE member states who do not have same-sex marriage) and would oblige them to introduce same-sex marriage. This would seriously undermine and even threaten the structure of the Council of Europe. We need to remember that the Court is one of the Council of Europe’s achievements and all these 47 countries voluntary agreed to have the Court and be legally bind by its jurisprudence, so let’s not to forget it. But again, its matter of perspective and I believe we can be pleased with the judgement, the two points I mentioned I very much the maximum the Court could do in present situation and this is definitely helpful and opens a completely new chapter as now we can take a step further and LGBT rights cannot be only viewed as ‘private life’ but ‘family life’ and this is big.

  5. I suppose this ruling is for the benefit of the East European homophobes. Mustn’t start upsetting the newly acceded countries just yet.

  6. What a lot of BS. If it were black people instead of gay people, would this ruling be acceptable? We should never cease to be outraged by discrimination, which the European courts have chosen to remain apathetic on.

    We should be able to achieve complete equality by practice and in NAME under law. There should be one common system for all in law, even if it isn’t called marriage – not two different “same but separate” systems.

  7. “Unfortunately the European Court of Human Rights is very much influence by the situation of the Council of Europe member states”

    I see that that’s good in one way – ie to prevent it dictating what to do – but in something like human rights, I’d have hoped it would have been a little more forceful.

    And this is yet another reason to be annoyed at the UK. If we had gay marriage, that’d be one more country added to the list. I know we’ve made progress, but I do wish we’d made more.

  8. http://www.guardian.co.uk/law/2010/jun/24/european-court-of-human-rights-civil-partnerships

    Isn’t this the same case that the previous labour government intervened in and argued that marriage was the sole right of men and women – for a party that is so pro gay it is so very strange that they intervened in this way. It is also very interesting that Stonewall also did not intervene on the side of the applicants but then again perhaps it is not since they believe that CP is an adequate system for gay people , I guess registering a partnership isn’t more important than registering a dog!!!

    Comment from the guardian :
    It may be noticed that the government of the United Kingdom intervened on the side of Austria and that four NGOs (ICJ, FIDH, AIRE Centre and the European Region of the International Gay and Lesbian Association) intervened on the side of applicants.

  9. John, the Tory government is no different from Labour on this one. It too believes that marriage is solely between one man and one woman, all based on religious interpretation of marriage. Just like his predecessors Brown and Blair when they equate civil marriage with the religious component, the reason why they and Cameron refuses to support it for fear of upsetting the majority of religous cultist bigots who are actually dictating who gets to marry. In doing so, they bow to discrimination and bigotry as well as homophobia as do those of us who denigrate marriage equality with the help of StonewallUK who are doing absolutely nothing about it, co-conspirators in support of the ban. Maintaining the ban on civil marriage equality has more to do with wilfull discrimination, bigotry and hypocrisy and our successive governments along with StonewallUK have it in profusion. 7 EU countries plus Iceland, Canada, South Africa, Mexico City, Buenos Aires, five American states have proved them wrong and that will continue, thankfully.

  10. A few things to mention. Firstly, the article is slightly wrong as it refers to ‘European Law’ which implies EU law when in fact the ECtHR deals with case law developed under the European Convention on Human Rights.

    Secondly, all this ruling states is that the Convention doesn’t automatically imply gay marriage is a fundamental right – it didn’t say that gay marriage is banned or anything like that. In other words, it’s still entirely within the remit of member states and their laws, traditions, etc.

  11. Robert – I guess you’re right about the tories, I don’t hold up much hope that they will bring in gay marriage but they’ve only been there for a month or two so and unlike most people my mind is still open to them. In this case it was the previous lab govt that intervened in this case and argued that marriage was between man and woman. It’s rather sad that even a supposedly gay friendly party that had been in power for 13 yrs with a large majority did not bring in gay marriage. As you have said it is also surprising that Stonewall seem to be in agreement with them. Without an opposition to the tories on this subject then the progress will be painfully slow. In the unlikely event that lab will get back in power some time in the foreseeable future I certainly hope that they change their stance on this and also more gay organisations in the UK decide to be more vocal on the subject. At the moment THEY ARE NOT!

  12. It’s sad when a human rights court puts expediency before human rights.

  13. Comment #1 by Juris was more informative than the article itself.
    Comment #2 is all about feelings of disappointment and discrimination. All the legal change according to this “gay” agenda of the last decade (recognition of gay couples) will not dispel feelings of negativity about oneself, or one’s lack of a happy support network..

    Comment #3 is clued in but worth adding that politics is not the only way of implementing social change.

    Comment #5 mentions homophobes. I must point out that knee-jerk reaction of homophobia to any news is rather uninspiring. If homophobia exists inevitably, then it will not be eliminated by accusations of homophobia. Even if you want to eliminate homophobia, anybody should be able to define a desirable level of it to keep. Homophobia is not smallpox. You don’t want to wipe it out completely. “Gay” would not exist if homophobia were wiped out. That may seem a desirable goal, but the outcome would be temporary, because evolution would cause the one or the other to arise again of itself.

    The biggest threat to humanity today is not Homosexuality, but Over-population. The biggest threat to the Earth today is Humanity. To focus on homophobia is too narrow to be of use politically (explicitly or not). The biggest threat to Gays today is adhering to some creed that Gay Rights are the way to find happiness.

    Comment #12. Human Rights Courts have supported the social agenda of Europe and the West since World War 2, and in many cases have already been used to create influence far beyond their intention. Their intention was to prevent a War like That ever happening again. Their influence at their height fostered a World of Fairyland Idealism which created problems that we are still dealing with (eg. the “broken” society, which is less broken than 7 years ago, but not as solid as 30 years ago).

    Moderation such as this in the Human Rights Court is a noble achievement, and should be the goal for a long-term future.

  14. As usual, Europe bottles out on real issues and just keeps holding out it’s hand for more money. I have never seen any point whatsoever in being part of this bunch of sheep that call themselves a “union”.

  15. Um….thanks for honouring us with your words of wisdom, gerry *rolls eyes* After that brief indulgence in sarcasm, I won’t be so sad as to reciprocate with my feelings about YOUR comment.

    Overpopulation? Yes, indeed that’s a problem as is the associated problem of poverty. However, unlike you, I like to think that we’re capable of dealing with more than one problem at once. Just because there are worse things happening, doesn’t mean that we should ignore smaller things. You won’t get people to think about overpopulation without getting them to think about people other than themselves, and giving weight to equality (race, gender, sexuality…)helps people see the big picture and realise that we’re all part of the human race and what needs consideration is the whole picture and everyone’s future aswell as one’s own personal one.

    And I have no feelings of negativity about myself, thanks. What a weird thing to say. I also post on anti-racism boards – according to your warped logic that must be because I feel negative about my skin colour. Er, no – it’s because I dislike discrimination of all kinds (whether it affects me directly or not).

    And no, I don’t need a ‘support network’ – I WORK for one.

  16. Civil partnership IS Gay Marraige!

  17. YEYE YEYE TAKE THAT USA

  18. Tony – CP IS a CP and gay marriage IS a gay marriage! ie CP IS NOT gay marriage… ask an lawyer!

  19. No, you just have to amend the Marriage Act. Simple. Of course, the so called ‘religous’ put a spoke in the wheel.

    Thankfully, they are now getting them comeuppance in places like the republic or Ireland and now Belgium is turning up the heat.

  20. de Villiers
    > Gay marriage is a matter of politics not law. Politics and
    > not litigation is the appropriate route.

    But in most cases _equal_marriage_ has been achieved through litigation. What matters to me is equality.

  21. Both PinkNews and ILGA’s Juris Lavrikovs disappointingly miss the main point, which The Guardian caught but buried deep in their analysis of the judgment ( http://www.guardian.co.uk/law/2010/jun/24/european-court-of-human-rights-civil-partnerships ). However it is starkly obvious when reading the the judgement itself, which is online at the court’s site: http://tinyurl.com/26pu2nk

    For the first time that I recall in 40 years of watching the European Court of Human Rights (ECHR), the panel (of judges from only 7 member countries) in this case have right royally screwed up and the case urgently needs appealing to its Grand Council where all the nation members’ judges sit.

    Robert
    > Maintaining the ban on civil marriage equality has more to do
    > with wilfull discrimination

    That is exactly right. And that was was put to the court as a prime point for it to decide, but it failed to do so. Almost as if forgetting.

    Basically the court had to decide on two points referring to three different parts of the convention. The first was whether marriage was a right that should be available to same sex couples under the right to marriage article of the convention. This was never a realistic possibility since the convention leaves marriage eligibility to member nations. But the court made things worse (perhaps showing bias) by saying that section should be interpreted in the light of society when it was written (1940s), when, obviously, the court normally interprets in the light of present day society. But that would then hit the hurdle of most members states not yet allowing same-sex marriage (would apologists for CPs please note that they don’t count as support for same-sex equality where it matters).

    The justices rejected that claim decisively.

    The second was (to quote the judgement):
    | 76. The applicants maintained that the heart of their
    | complaint was that they were discriminated against as a same-sex
    | couple. Agreeing with the Government on the applicability of
    | Article 14 taken in conjunction with Article 8, they asserted
    | that just like differences based on sex, differences based on
    | sexual orientation required particularly serious reasons for
    | justification. In the applicants’ contention the Government had
    | failed to submit any such reasons for excluding them from access
    | to marriage.

    The court, by 4 to 3, responds to that by saying:

    | …the Court has held repeatedly that, just like differences based
    | on sex, differences based on sexual orientation require
    | particularly serious reasons by way of justification (see
    | Karner, cited above, § 37; L. and V. v. Austria, cited above, §90).

    It then fails to examine that question, perhaps because the government of Austria didn’t bother to provide any reasons, but, if that were the case the court should have asked for further particulars, and raised it at the oral hearing.

    Instead it talks of states having a wide margin of appreciation, which is irrelevant to the assessment of discrimination. Discrimination is different treatment because of a particular characteristic, and can never be assessed on the basis that a nation is allowed to treat people differently. All discrimination would slide under such an idea. ECHR justices know that, but have ignored it on same-sex marriage.

    These matters have been thorough;y examined in courts elsewhere and it is the absolute crux of the matter. It is unbelievable that the ECHR should think them open to be ignored, even if a government party does.

    Don’t take my word. Three of the justices wrote it themselves.

    The minority 3 judges enter a dissenting judgement which says:
    > 8. Having identified a “relevantly similar situation”
    > (paragraph 99), and emphasised that “differences based on sexual
    > orientation require particularly serious reasons by way of
    > justification” (paragraph 97), the Court should have found a
    > violation of Article 14 taken in conjunction with Article 8 of
    > the Convention because the respondent Government did not advance
    > any argument to justify the difference of treatment, relying in
    > this connection mainly on their margin of appreciation
    > (paragraph 80). However, in the absence of any cogent reasons
    > offered by the respondent Government to justify the difference
    > of treatment, there should be no room to apply the margin of
    > appreciation. Consequently, the “existence or non-existence of
    > common ground between the laws of the Contracting States”
    > (paragraph 98) is irrelevant as such considerations are only a
    > subordinate basis for the application of the concept of the
    > margin of appreciation. Indeed, it is only in the event that the
    > national authorities offer grounds for justification that the
    > Court can be satisfied, taking into account the presence or the
    > absence of a common approach, that they are better placed than
    > it is to deal effectively with the matter.
    > 9. Today it is widely recognised and also accepted by society
    > that same-sex couples enter into stable relationships. Any
    > absence of a legal framework offering them, at least to a
    > certain extent, the same rights or benefits attached to marriage
    > (see paragraph 4 of this dissent) would need robust
    > justification, especially taking into account the growing trend
    > in Europe to offer some means of qualifying for such rights or
    > benefits.
    > 10. Consequently, in our view, there has been a violation of
    > Article 14 in conjunction with Article 8 of the Convention.

    I find it odd that ILGA’s Juris Lavrikovs doesn’t see fit to mention that very, very important matter. Is ILGA perhaps of the CP/non-equality persuasion too?

  22. why they so dum dums

  23. Why has Pink News not opened the comments page on the article about Mr Gay UK and his trial for rape? If he were a victim of male rape the comments page would be flooded by now.

  24. oatc, of course, it IS wilfull discrimination and isn’t it appalling that some of our own gay people support it?

    In regard to those who want only CPs and support the ban on same-sex civil marriage, the ECHR ruling should apply to CPs if our government intends to get recognition of British CPs in other European countries. If they’re saying that same-sex marriage is not a right, then the same law should apply to CPs. Some claim, erroneously of course, that they are the same as marriage in the UK, yet there is no legal recognition of them as such under British law as far as I know. Merely regarding them as marriages has no legality whatosever.

  25. The guardian has a useful positive spin http://www.guardian.co.uk/law/2010/jun/29/europe-rules-same-sex-marriage-austria

    Again why does the British govt have to interfer in a negaitve way and this was a under the lab govt who are supposed to be ever so pro-gay

    Comment from guardian
    “All of the other 46 states of the Council of Europe could have chosen to intervene in this case. Only one did – the United Kingdom. The court’s judgment summarises the UK’s arguments as being strongly against any right to same-sex marriage or to recognition of same-sex partnerships. This intervention is very peculiar, to say the least, as it was done under the previous Labour government, which was very proud of introducing legal recognition of civil partnerships in Britain. In fact, after this intervention was publicised in the Guardian in 2008 and Anthony Lester raised the issue in the Lords, the government said it was amending its arguments, but it does not appear to have done so with any major change of approach.

    In fact, when it comes to intervening at the European court of human rights to weaken human rights protection, the UK has form. In a 2008 case against Italy it was again the sole intervener, this time trying to water down the absolute ban on deportations where there is a real risk of torture. Its arguments in that case were resoundingly rejected by the court, and its intervention was later criticised by a parliamentary committee.”

  26. The four justices who dismissed the claim that Austria denied same-sex marriage through illegal discrimination are (details from http://www.echr.coe.int/ECHR/EN/Header/The+Court/The+Court/Judges+of+the+Court/# ):
    Anatoly Kovler – Russian Federation
    http://www.echr.coe.int/ECHR/Resources/TheCourt/TheCourt/JudgesCVandPhotos/photos/KOVLER.jpg

    Elisabeth Steiner – Austria
    http://www.echr.coe.int/ECHR/Resources/TheCourt/TheCourt/JudgesCVandPhotos/photos/STEINER.jpg

    Giorgio Malinverni – Switzerland
    http://www.echr.coe.int/ECHR/Resources/TheCourt/TheCourt/JudgesCVandPhotos/photos/MALINVERNI.jpg

    George Nicolaou – Cyprus
    http://www.echr.coe.int/ECHR/Resources/TheCourt/TheCourt/JudgesCVandPhotos/photos/NICOLAOU.jpg

    Those who accepted there is discrimination and wrote a dissenting opinion are:
    Christos Rozakis – Greece
    http://www.echr.coe.int/ECHR/Resources/TheCourt/TheCourt/JudgesCVandPhotos/photos/ROZAKIS.jpg

    Dean Spielmann – Luxembourg
    http://www.echr.coe.int/ECHR/Resources/TheCourt/TheCourt/JudgesCVandPhotos/photos/SPIELMANN.jpg

    Sverre Erik Jebens – Norway
    http://www.echr.coe.int/ECHR/Resources/TheCourt/TheCourt/JudgesCVandPhotos/photos/JEBENS.jpg

    So only one judge was from a country with equal marriage (he voted that to deny it is discrimination), and the judge from the defendant country voted for its position, for which in respect of the issue of discrimination, which was decided on the vote of one judge (4 to 3), it had submitted no evidence.

    There should perhaps be an analysis of the voting records of ECHR justices on sexual minority issues over all their cases.

    The favourable judge Christos Rozakis, from Greece, retires this year, to be replaced by a Gree jurist still to be elected.

  27. John
    > Comment from guardian
    >| “All of the other 46 states of the Council of Europe could
    >| have chosen to intervene in this case. Only one did – the United
    >| Kingdom. The court’s judgment summarises the UK’s arguments as
    >| being strongly against any right to same-sex marriage or to
    >| recognition of same-sex partnerships. This intervention is very
    >| peculiar, to say the least, as it was done under the previous
    >| Labour government, which was very proud of introducing legal
    >| recognition of civil partnerships in Britain. In fact, after
    >| this intervention was publicised in the Guardian in 2008 and
    >| Anthony Lester raised the issue in the Lords, the government
    >| said it was amending its arguments, but it does not appear to
    >| have done so with any major change of approach.

    This needs investigating further. Perhaps it was too late to amend their submissions, but if they promised to do so but did not it would be even more scandalous.

    The judgement ( http://tinyurl.com/26pu2nk ) tells of quite substantial UK intervention, not just against equal access to marriage but also against there being any right to any form of partnership recognition. In other words saying that the fact that the UK has civil partnerships should not be used as any indication that it is a human right that other countries should also provide.

    That is really shocking from a government that was prominently claiming to be using its foreign policy to promote LGBT human rights worldwide.

    The only interpretation I can see is possible is that it meant it was promoting its ideas on LGBT human rights, which included that we have no right to family life. It seems fair to surmise hat similarly prejudiced views on other LGBT matters would also be being promoted, whilst LGBT activists were massaging their Labour egos and saying how wonderful they were for flying rainbow flags from UK embassies on local pride days.

    If we had a proper LGBT press some FOI trawls would be done to discover the truth.

    This is not just a matter of the past since one of the current Labour leadership candidates was Foreign Secretary, and, separately, the policy may still be unchanged.

  28. Tim Hopkins 30 Jun 2010, 9:14am

    oatc wrote: “But in most cases _equal_marriage_ has been achieved through litigation.

    Outside Europe, that is correct – Canada, South Africa, Massachussets, Connecticut, Iowa etc all got equal marriage through litigation. But in all the 7 European countries with equal marriage, it has been got through legislation, not litigation.

    I’ve always thought that’s the route we need to go in the UK. If we wait for the Euro Court of Human Rights to require equal marriage (which they will do eventually I’m sure), we will be one of the last batch of the 47 Council of Europe countries to get it.

    The current and previous UK Govts, and the Scottish Govt, claim international leadership on LGBT equality. But on equal marriage, 7 of the 10 countries surrounding the UK already have it (Iceland, Norway, Sweden, Netherlands, Belgium, Spain and Portugal). We’re not leading there, we’re lagging a long way behind.

  29. oatc: “In other words saying that the fact that the UK has civil partnerships should not be used as any indication that it is a human right that other countries should also provide.”

    I was shocked by the UK’s intervention too. And I couldn’t understand why it intervened in that way. But, thinking about it, could your statement above provide a clue? Namely that the UK wants to make sure that one country having something doesn’t mean that that thing could be conceived as a right in another country. That would totally fit in with the UK’s obsession with withholding civil marriage from us. They had to intervene in this case in order to try to protect their own right to refuse to grant us access to civil marriage as more and more EU countries alllow it.

    Why does the UK government care so much about preventing us from getting married?

  30. Ignacio_N: “Why has Pink News not opened the comments page on the article about Mr Gay UK and his trial for rape? If he were a victim of male rape the comments page would be flooded by now.”

    The reason is that the press are not allowed to comment ongoing court cases and only state the facts in case it could be read by members of the jury who could be influenced by it.

    These comment links are not editorial, but I suspect they are covering their arses in case it might be deemed they are considered part of the publication.

    Once a verdict has been reached, they usually report it, and we are allowed free reign to say what we like.

  31. Here is Lord Lester’s question in house of lords on lab govt intervention

    Lord Lester of Herne Hill (Liberal Democrat)
    Why they are intervening before the European Court of Human Rights in the case of Horst Schalk and Johann Kopf v Austria (Application No. 30141/04) to contend that same-sex relationships fall outside the ambit of family life for the purposes of Article 8 of the European Convention on Human Rights.

    Lord Hunt of Kings Heath (Parliamentary Under-Secretary, Ministry of Justice; Labour)
    My Lords, the Government have intervened in the case of Schalk and Kopf v Austria primarily to support the proposition that Article 12 of the European Convention on Human Rights does not require same-sex couples to be allowed to marry. The noble Lord has raised an important technical issue about our observations in this case, for which I am grateful and upon which I am reflecting in consultation with my ministerial colleagues.
    Lord Lester of Herne Hill (Liberal Democrat)
    My Lords, I am grateful to hear that Ministers are considering the matter further. I have put the observations in the Library, so that those who want to can see exactly what the Government have said. It is not correct that they have confined their observations only to the right to marry. They have also said that the court should not develop its case law so that same-sex partners living in an enduring family relationship are protected by Articles 8 and 14 of the convention against sexual orientation discrimination in the enjoyment of the fundamental right to respect for family life. I have two questions. First, is that the Government’s aim because, if so, it seems bizarre? Secondly, in the light of our law’s recognition of civil partnership and recognition that for the purposes of adoption a couple includes two people of the same sex living as partners in an enduring family relationship, why on earth do the Government negatively seek to persuade the Strasbourg court that the convention does not require the creation of legal recognition of such relationships for same-sex couples, who cannot marry?

    Old article in Guardian
    http://www.guardian.co.uk/uk/2008/dec/09/civil-partnership-rights-austria-uk

    Comment by them:
    “…However, the government is still arguing that the court should not require European states to allow marriage for same-sex couples. It has told the court that the right to marry refers to “the traditional marriage between persons of the opposite biological sex … There is not an evolving convergence to the effect that persons in a same-sex relationship should be allowed to contract a marriage.”

  32. “First, is that the Government’s aim because, if so, it seems bizarre? ”

    Bizarre indeed. Thank you for that, John.

  33. John:
    > Here is Lord Lester’s question in house of lords on lab govt
    > intervention…

    Thank you indeed for posting that. The intervention the UK sent to the court is online at the House of Lords Library as a TIFF scan at http://www.parliament.uk/deposits/depositedpapers/2008/DEP2008-3159.tif

    I don’t get the impression they withdrew it, as Lord Lester was promised, or maybe they weren’t allowed to, because it matches what is in the court judgment. The only way to check would be for someone to look at the case documents, in person, in Strasbourg.

    The man who signed it is still the responsible officer in the legal department at the Foreign and Commonwealth Office. Yes, the same ministry that claims to be promoting LGBT rights through the UK foreign policy and embassies.

    It probably was that they didn’t (and don’t) want to be forced by the ECHR to make marriage in the UK equal, but they went far beyond what was necessary for that, arguing against other countries being required to provide any recognition of same-sex family life. Still the court went against most of their arguments. The question has to be what similar pressure they use elsewhere, contrary to their public stances. Clearly they must be pressing other countries against equal marriage, at the very least. And Ireland was probably one willing listener.

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