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ESTRATTO DOCUMENTO

SCHALK AND KOPF v. AUSTRIA JUDGMENT 2

AIRE Centre (Advice on Individual Rights in Europe) and ILGA-Europe

(European Region of the International Lesbian and Gay Association). The

four non-governmental organisations were also given leave by the President

to intervene at the hearing.

6. A hearing took place in public in the Human Rights Building,

Strasbourg, on 25 February 2010 (Rule 59 § 3).

There appeared before the Court:

(a) for the Government

Mrs B. O , Federal Chancellory, Deputy Agent,

HMS

Mrs G. P , Federal Ministry of European and International

ASCHINGER

Affairs

Mr M. S , Federal Ministry of Justice, Advisers;

TORMANN

(b) for the applicants

Mr K. M , Counsel,

AYER

Mr H. S , Applicant;

CHALK

(c) for the Non-governmental organisations, third-party interveners

Mr R. W , Kings College, London Counsel,

INTEMUTE

Mrs A. J , International Commission of Jurists, Adviser.

ERNOW

The Court heard addresses by Mrs Ohms, Mr Mayer and Mr Wintemute.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

7. The applicants were born in 1962 and 1960, respectively. They are a

same-sex couple living in Vienna.

8. On 10 September 2002 the applicants requested the Office for matters

of Personal Status (Standesamt) to proceed with the formalities to enable

them to contract marriage.

9. By decision of 20 December 2002 the Vienna Municipal Office

(Magistrat) refused the applicants' request. Referring to Article 44 of the

Civil Code (Allgemeines Bürgerliches Gesetzbuch), it held that marriage

could only be contracted between two persons of opposite sex. According to

constant case-law, a marriage concluded by two persons of the same sex

was null and void. Since the applicants were two men, they lacked the

capacity for contracting marriage.

10. The applicants lodged an appeal with the Vienna Regional Governor

(Landeshauptmann), but to no avail. In his decision of 11 April 2003 the

SCHALK AND KOPF v. AUSTRIA JUDGMENT 3

Governor confirmed the Municipal Office's legal view. In addition he

referred to the Administrative Court's case-law according to which it

constituted an impediment to marriage if the two persons concerned were of

the same sex. Moreover, Article 12 of the European Convention for the

Protection of Human Rights and Fundamental Freedoms reserved the right

to contract marriage to persons of different sex.

11. In a constitutional complaint the applicants alleged that the legal

impossibility for them to get married constituted a violation of their right to

respect for private and family life and of the principle of non-discrimination.

They argued that the notion of marriage had evolved since the entry into

force of the Civil Code in 1812. In particular, the procreation and education

of children no longer formed an integral part of marriage. In present-day

perception, marriage was rather a permanent union encompassing all aspects

of life. There was no objective justification for excluding same-sex couples

from concluding marriage, all the more so since the European Court of

Human Rights had acknowledged that differences based on sexual

orientation required particularly weighty reasons. Other European countries

either allowed homosexual marriages or had otherwise amended their

legislation in order to give equal status to same-sex partnerships.

12. Finally, the applicants alleged a breach of their right to peaceful

enjoyment of their possessions. They argued that in the event that one

partner in a homosexual couple died, the other was discriminated against

since he would be in a much less favourable position under tax law than the

surviving partner in a married couple.

13. On 12 December 2003 the Constitutional Court

(Verfassungs-gerichtshof) dismissed the applicants' complaint. The relevant

parts of its judgment read as follows:

“The administrative proceedings that resulted in the impugned decision were

exclusively concerned with the issue of the legitimacy of the marriage. Accordingly,

the complainants' sole applicable grievance is that Article 44 of the Civil Code only

recognises and provides for marriage between “persons of opposite sex”. The

allegation of a breach of the right of property is simply a further means of seeking to

show that this state of affairs is unjustified.

With regard to marriage, Article 12 of the ECHR, which ranks as constitutional law,

provides:

'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.'

Neither the principle of equality set forth in the Austrian Federal Constitution nor

the European Convention on Human Rights (as evidenced by “men and women” in

Article 12) require that the concept of marriage as being geared to the fundamental

possibility of parenthood should be extended to relationships of a different kind. The

essence of marriage is, moreover, not affected in any way by the fact that divorce (or

separation) is possible and that it is a matter for the spouses whether in fact they are

able or wish to have children. The European Court of Human Rights found in its

Cossey judgment of 27 September 1990 (no. 10843/84, concerning the particular

SCHALK AND KOPF v. AUSTRIA JUDGMENT 4

position of transsexual persons) that the restriction of marriage to this “traditional”

concept was objectively justified, observing

'... that attachment to the traditional concept of marriage provides sufficient reason

for the continued adoption of biological criteria for determining a person's sex for the

purposes of marriage.'

[The subsequent change in the case-law concerning the particular issue of

transsexuals (ECHR, Goodwin, no. 28957/95, 11 July 2002) does not permit the

conclusion that there should be any change in the assessment of the general question

at issue here.]

The fact that same-sex relationships fall within the concept of private life and as

such enjoy the protection of Article 8 of the ECHR – which also prohibits

discrimination on non-objective grounds (Article 14 of the ECHR) – does not give

rise to an obligation to change the law of marriage.

It is unnecessary in the instant case to examine whether, and in which areas, the law

unjustifiably discriminates against same-sex relationships by providing for special

rules for married couples. Nor is it the task of this court to advise the legislature on

constitutional issues or even matters of legal policy.

Instead, the complaint must be dismissed as ill-founded.”

14. The Constitutional Court's judgment was served on the applicants'

counsel on 25 February 2004.

II. RELEVANT DOMESTIC AND COMPARATIVE LAW

A. Austrian law

1. The Civil Code

15. Article 44 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch)

provides:

“The marriage contract shall form the basis for family relationships. Under the

marriage contract two persons of opposite sex declare their lawful intention to live

together in indissoluble matrimony, to beget and raise children and to support each

other.”

The provision has been unchanged since its entry into force on 1 January

1812. SCHALK AND KOPF v. AUSTRIA JUDGMENT 5

2. The Registered Partnership Act

16. The purpose of the Registered Partnership Act (Eingetragene

Partnerschaft-Gesetz) was to provide same-sex couples with a formal

mechanism for recognising and giving legal effect to their relationships. In

introducing the said Act the legislator had particular regard to developments

in other European states (see the explanatory report on the draft law –

Erläuterungen zur Regierungsvorlage, 485 der Beilagen XXIV GP).

17. The Registered Partnership Act, Federal Law Gazette

(Bundesgesetzblatt) vol. I, no. 135/2009, entered into force on 1 January

2010. Its section 2 provides as follows:

“A registered partnership may be formed only by two persons of the same sex

(registered partners). They thereby commit themselves to a lasting relationship with

mutual rights and obligations.“

18. The rules on the establishment of registered partnership, its effects

and its dissolution resemble the rules governing marriage.

19. Registered partnership involves co-habitation on a permanent basis

and may be entered into between two persons of the same sex having legal

capacity and having reached the age of majority (section 3). A registered

partnership must not be established between close relatives or with a person

who is already married or has established a still valid registered partnership

with another person (section 5).

20. Like married couples, registered partners are expected to live

together like spouses in every respect, to share a common home, to treat

each other with respect and to provide mutual assistance (section 8(2)

and (3)). As in the case of spouses, the partner who is in charge of the

common household and has no income has legal authority to represent the

other partner in everyday legal transactions (section 10). Registered partners

have the same obligations regarding maintenance as spouses (section 12).

21. The reasons for dissolution of registered partnership are the same as

for dissolution of marriage or divorce. Dissolution of a registered

partnership occurs in the event of the death of one partner (section 13). It

may also be pronounced by a judicial decision on various other grounds:

lack of intent to establish a registered partnership (section 14), fault of one

or both partners, or breakdown of the partnership due to irreconcilable

differences (section 15).

22. The Registered Partnership Act also contains a comprehensive range

of amendments to existing legislation in order to provide registered partners

with the same status as spouses in various other fields of law, such as

inheritance law, labour, social and social insurance law, fiscal law, the law

on administrative procedure, the law on data protection and public service,

passport and registration issues, as well as the law on foreigners.

23. However, some differences between marriage and registered

partnership remain, apart from the fact that only two persons of the same

SCHALK AND KOPF v. AUSTRIA JUDGMENT 6

sex can enter into a registered partnership. The following differences were

the subject of some public debate before the adoption of the Registered

Partnership Act: while marriage is contracted before the Office for matters

of Personal Status, registered partnerships are concluded before the District

Administrative Authority. The rules on the choice of name differ from those

for married couples: for instance, the law speaks of “last name” where a

registered couple chooses a common name, but of “family name” in

reference to a married couple's common name. The most important

differences, however, concern parental rights: unlike married couples,

registered partners are not allowed to adopt a child; nor is step-child

adoption permitted, that is to say, the adoption of one partner's child by the

other partner (section 8(4)). Artificial insemination is also excluded

(section 2 (1) of the Artificial Procreation Act -

Fortpflanzungsmedizingesetz).

B. Comparative law

1. European Union law

24. Article 9 of the Charter of Fundamental Rights of the European

Union, which was signed on 7 December 2000 and entered into force on

1 December 2009, reads as follows:

“The right to marry and to found a family shall be guaranteed in accordance with the

national laws governing the exercise of these rights.”

25. The relevant part of the Commentary of the Charter states as

follows:

“Modern trends and developments in the domestic laws in a number of countries

toward greater openness and acceptance of same-sex couples notwithstanding, a few

states still have public policies and/or regulations that explicitly forbid the notion that

same-sex couples have the right to marry. At present there is very limited legal

recognition of same-sex relationships in the sense that marriage is not available to

same-sex couples. The domestic laws of the majority of states presuppose, in other

words, that the intending spouses are of different sexes. Nevertheless, in a few

countries, e.g., in the Netherlands and in Belgium, marriage between people of the

same sex is legally recognized. Others, like the Nordic countries, have endorsed a

registered partnership legislation, which implies, among other things, that most

provisions concerning marriage, i.e. its legal consequences such as property

distribution, rights of inheritance, etc., are also applicable to these unions. At the same

time it is important to point out that the name 'registered partnership' has intentionally

been chosen not to confuse it with marriage and it has been established as an

alternative method of recognizing personal relationships. This new institution is,

consequently, as a rule only accessible to couples who cannot marry, and the same-

sex partnership does not have the same status and the same benefits as marriage. (...)

In order to take into account the diversity of domestic regulations on marriage,

Article 9 of the Charter refers to domestic legislation. As it appears from its

SCHALK AND KOPF v. AUSTRIA JUDGMENT 7

formulation, the provision is broader in its scope than the corresponding articles in

other international instruments. Since there is no explicit reference to 'men and

women' as the case is in other human rights instruments, it may be argued that there is

no obstacle to recognize same-sex relationships in the context of marriage. There is,

however, no explicit requirement that domestic laws should facilitate such marriages.

International courts and committees have so far hesitated to extend the application of

the right to marry to same-sex couples. (...)”

26. A number of Directives are also of interest in the present case:

European Council Directive 2003/86/EC of 22 September 2003, on the

right to family reunification, deals with the conditions for the exercise of the

right to family reunification by third country nationals residing lawfully in

the territory of the Member States.

Its Article 4, which carries the heading “family members”, provides:

“(3) The Member States may, by law or regulation, authorise the entry and

residence, pursuant to this Directive und subject to compliance with the conditions

laid down in Chapter IV, of the unmarried partner, being a third country national, with

whom the sponsor is in a duly attested stable long-term relationship, or of a third

country national who is bound to the sponsor by a registered partnership in

accordance with Article 5(2), ...”

Directive 2004/38/EC of the European Parliament and Council of

29 April 2004 concerns the right of citizens of the Union and their family

members to move and reside freely within the territory of the Member

States.

Its Article 2 contains the following definition:

“(2) 'Family member' means:

(a) the spouse

(b) the partner with whom the Union citizen has contracted a registered parternship,

on the basis of the legislation of a Member State, if the legislation of the host Member

State treats registered partnerships as equivalent to marriage in accordance with the

conditions laid down in the relevant legislation of the host Member State.

(c) the direct descendants who are under the age of 21 or are dependants and those

of the spouse or partner as defined in point (b)

(d) the dependent direct relative in the ascending line and those of the spouse or

partner as defined in point (b).”

2. The state of relevant legislation in Council of Europe member States

27. Currently six out of forty-seven member States grant same-sex

couples equal access to marriage, namely Belgium, the Netherlands,

Norway, Portugal, Spain and Sweden.

28. In addition there are thirteen member States, which do not grant

same-sex couples access to marriage, but have passed some kind of

legislation permitting same-sex couples to register their relationships:

SCHALK AND KOPF v. AUSTRIA JUDGMENT 8

Andorra, Austria, the Czech Republic, Denmark, Finland, France, Germany,

Hungary, Iceland, Luxembourg, Slovenia, Switzerland and the United

Kingdom. In sum, there are nineteen member States in which same sex

couples either have the possibility to marry or to enter into a registered

partnership (see also the overview in Burden v. the United Kingdom [GC],

no. 13378/05, § 26, ECHR 2008).

29. In two States, namely in Ireland and Liechtenstein reforms intending

to give same-sex couples access to some form of registered partnership are

pending or planned. In addition Croatia has a Law on Same-Sex Civil

Unions which recognises cohabiting same-sex couples for limited purposes,

but does not offer them the possibility of registration.

30. According to the information available to the Court, the vast

majority of the States concerned have introduced the relevant legislation in

the last decade.

31. The legal consequences of registered partnership vary from almost

equivalent to marriage to giving relatively limited rights. Among the legal

consequences of registered partnerships, three main categories can be

distinguished: material consequences, parental consequences and other

consequences.

32. Material consequences cover the impact of registered partnership on

different kinds of tax, health insurance, social security payments and

pensions. In most of the States concerned registered partners obtain a status

similar to marriage. This also applies to other material consequences, such

as regulations on joint property and debt, application of rules of alimony

upon break-up, entitlement to compensation on wrongful death of partner

and inheritance rights.

33. When it comes to parental consequences, however, the possibilities

for registered partners to undergo medically assisted insemination or to

foster or adopt children vary greatly from one country to another.

34. Other consequences include the use of the partner's surname, the

impact on a foreign partner's obtaining a residence permit and citizenship,

refusal to testify, next-of-kin status for medical purposes, continued status

as tenant upon death of the partner, and lawful organ donations.

THE LAW

I. THE GOVERNMENT'S REQUEST TO STRIKE THE APPLICATION

OUT OF THE COURT'S LIST

35. In their oral pleadings the Government argued that the Registered

Partnership Act allowed same-sex couples to obtain a legal status adjusted

SCHALK AND KOPF v. AUSTRIA JUDGMENT 9

as far as possible to the status conferred by marriage on different-sex

couples. They submitted that the matter might be regarded as being resolved

and that it was justified to strike the application out of the Court's list. They

relied on Article 37 § 1 of the Convention which, so far as material, reads as

follows:

“1. The Court may at any stage of the proceedings decide to strike an application

out of its list of cases where the circumstances lead to the conclusion that

...

(b) the matter has been resolved;

...

However, the Court shall continue the examination of the application if respect for

human rights as defined in the Convention and the Protocols thereto so requires.”

36. To conclude that Article 37 § 1 (b) of the Convention applies to the

instant case, the Court must answer two questions in turn: firstly, it must ask

whether the circumstances complained of directly by the applicants still

obtain and, secondly, whether the effects of a possible violation of the

Convention on account of those circumstances have also been redressed (see

Shevanova v. Latvia (striking out) [GC], no. 58822/00, § 45, 7 December

2007).

37. The Court observes that the gist of the applicants' complaint is that,

being a same-sex couple, they do not have access to marriage. This situation

still obtains following the entry into force of the Registered Partnership Act.

As the Government themselves pointed out, the said Act allows same-sex

couples to obtain only a status similar or comparable to marriage, but does

not grant them access to marriage, which remains reserved for different-sex

couples.

38. The Court concludes that the conditions for striking the case out of

its list are not met and therefore dismisses the Government's request.

II. ALLEGED VIOLATION OF ARTICLE 12 OF THE CONVENTION

39. The applicants complained that the authorities' refusal to allow them

to contract marriage violated Article 12 of the Convention, which provides

as follows:

“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.”

The Government contested that argument.

A. Admissibility

40. The Court observes that the Government raised the question whether

the applicants' complaint fell within the scope of Article 12, given that they

were two men claiming the right to marry. The Government did not argue,

SCHALK AND KOPF v. AUSTRIA JUDGMENT 10

however, that the complaint was inadmissible as being incompatible ratione

materiae. The Court agrees that the issue is sufficiently complex not to be

susceptible of being resolved at the admissibility stage.

41. The Court considers, in the light of the parties' submissions, that the

complaint raises serious issues of fact and law under the Convention, the

determination of which requires an examination of the merits. The Court

concludes therefore that this complaint is not manifestly ill-founded within

the meaning of Article 35 § 3 of the Convention. No other ground for

declaring it inadmissible has been established.

B. Merits

1. The parties' submissions

42. The Government referred to the Constitutional Court's ruling in the

present case, noting that the latter had had regard to the Court's case-law

and had not found a violation of the applicants' Convention rights.

43. In their oral pleadings before the Court, the Government maintained

that both the clear wording of Article 12 and the Court's case-law as it stood

indicated that the right to marry was by its very nature limited to

different-sex couples. They conceded that there had been major social

changes in the institution of marriage since the adoption of the Convention,

but there was not yet any European consensus to grant same-sex couples the

right to marry, nor could such a right be inferred from Article 9 of the

Charter of Fundamental Rights of the European Union. Despite the

difference in wording, the latter referred the issue of same-sex marriage to

national legislation.

44. The applicants argued that in today's society civil marriage was a

union of two persons which encompassed all aspects of their lives, while the

procreation and education of children was no longer a decisive element. As

the institution of marriage had undergone considerable changes there was no

longer any reason to refuse same-sex couples access to marriage. The

wording of Article 12 did not necessarily have to be read in the sense that

men and women only had the right to marry a person of the opposite sex.

Furthermore, the applicants considered that the reference in Article 12 to

“the relevant national laws” could not mean that States were given

unlimited discretion in regulating the right to marry.

2. The third party interveners' submissions

45. The Government of the United Kingdom asserted that the Court's

case-law as it stood considered Article 12 to refer to the “traditional

marriage between persons of the opposite biological sex” (see Sheffield and

Horsham v. the United Kingdom, 30 July 1998, § 66, Reports of Judgments

SCHALK AND KOPF v. AUSTRIA JUDGMENT 11

and Decisions 1998-V). In their view there were no reasons to depart from

that position.

46. While the Court had often underlined that the Convention was a

living instrument which had to be interpreted in present-day conditions, it

had only used that approach to develop its jurisprudence where it had

perceived a convergence of standards among member States. In

Christine Goodwin v. the United Kingdom [GC] (no. 28957/95,

ECHR 2002-VI), for instance, the Court had reviewed its position regarding

the possibility of post-operative transsexuals to marry a person of the sex

opposite to their acquired gender, having regard to the fact that a majority of

Contracting States permitted such marriages. In contrast there was no

convergence of standards as regards same-sex marriage. At the time when

the third-party Government submitted their observations only three member

States permitted same-sex marriage, and in two others proposals to this

effect were under consideration. The issue of same-sex marriage concerned

a sensitive area of social, political and religious controversy. In the absence

of consensus, the State enjoyed a particularly wide margin of appreciation.

47. The four non-governmental organisations called on the Court to use

the opportunity to extend access to civil marriage to same-sex couples. The

fact that different-sex couples were able to marry, while same-sex couples

were not, constituted a difference in treatment based on sexual orientation.

Referring to Karner v. Austria, (no. 40016/98, § 37, ECHR 2003-IX), they

argued that such a difference could only be justified by “particularly serious

reasons”. In their contention, no such reasons existed: the exclusion of

same-sex couples from entering into marriage did not serve to protect

marriage or the family in the traditional sense. Nor would giving same-sex

couples access to marriage devalue marriage in the traditional sense.

Moreover, the institution of marriage had undergone considerable changes

and, as the Court had held in Christine Goodwin (cited above, § 98), the

inability to procreate children could not be regarded as per se removing the

right to marry. The four non-governmental organisations conceded that the

difference between the case of Christine Goodwin and the present case lay

in the state of European consensus. However, they argued that in the

absence of any objective and rational justification for the difference in

treatment, considerably less weight should be attached to European

consensus.

48. Finally, the four non-governmental organisations referred to

judgments from the Constitutional Court of South Africa, the Courts of

Appeal of Ontario and British Columbia in Canada, and the Supreme Courts

of California, Connecticut, Iowa and Massachusetts in the United States,

which had found that denying same-sex couples access to civil marriage

was discriminatory.

SCHALK AND KOPF v. AUSTRIA JUDGMENT 12

3. The Court's assessment

a. General principles

49. According to the Court's established case-law Article 12 secures the

fundamental right of a man and woman to marry and to found a family. The

exercise of this right gives rise to personal, social and legal consequences. It

is “subject to the national laws of the Contracting States”, but the limitations

thereby introduced must not restrict or reduce the right in such a way or to

such an extent that the very essence of the right is impaired (see B. and L.

v. the United Kingdom, no. 36536/02, § 34, 13 September 2005, and

F. v. Switzerland, 18 December 1987, § 32, Series A no. 128).

50. The Court observes at the outset that it has not yet had an

opportunity to examine whether two persons who are of the same sex can

claim to have a right to marry. However, certain principles might be derived

from the Court's case-law relating to transsexuals.

51. In a number of cases the question arose whether refusal to allow a

post-operative transsexual to marry a person of the opposite sex to his or her

assigned gender violated Article 12. In its earlier case-law the Court found

that the attachment to the traditional concept of marriage which underpins

Article 12 provided sufficient reason for the continued adoption by the

respondent State of biological criteria for determining a person's sex for the

purposes of marriage. Consequently, this was considered a matter

encompassed within the power of the Contracting States to regulate by

national law the exercise of the right to marry (see Sheffield and Horsham,

cited above, § 67; Cossey v. the United Kingdom, 27 September 1990, § 46,

Series A no. 184; see also Rees v. the United Kingdom, 17 October 1986,

§§ 49-50, Series A no. 106).

52. In Christine Goodwin (cited above, §§ 100-104) the Court departed

from that case-law: It considered that the terms used by Article 12 which

referred to the right of a man and woman to marry no longer had to be

understood as determining gender by purely biological criteria. In that

context, the Court noted that there had been major social changes in the

institution of marriage since the adoption of the Convention. Furthermore, it

referred to Article 9 of the Charter of Fundamental Rights of the European

Union, which departed from the wording of Article 12. Finally, the Court

noted that there was widespread acceptance of the marriage of transsexuals

in their assigned gender. In conclusion the Court found that the

impossibility for a post-operative transsexual to marry in her assigned

gender violated Article 12 of the Convention.

53. Two further cases are of interest in the present context: (Parry

v. the United Kingdom (dec.), no. 42971/05, ECHR 2006-XV, and R. and F.

v. the United Kingdom (dec.), no. 35748/05, 28 November 2006). In both

cases the applicants were a married couple, consisting of a woman and a

SCHALK AND KOPF v. AUSTRIA JUDGMENT 13

male-to-female post-operative transsexual. They complained inter alia

under Article 12 of the Convention that they were required to end their

marriage if the second applicant wished to obtain full legal recognition of

her change of gender. The Court dismissed that complaint as being

manifestly ill-founded. It noted that domestic law only permitted marriage

between persons of opposite gender, whether such gender derived from

attribution at birth or from a gender recognition procedure, while same-sex

marriages were not permitted. Similarly, Article 12 enshrined the traditional

concept of marriage as being between a man and a woman. The Court

acknowledged that a number of Contracting States had extended marriage to

same-sex partners, but went on to say that this reflected their own vision of

the role of marriage in their societies and did not flow from an interpretation

of the fundamental right as laid down by the Contracting States in the

Convention in 1950. The Court concluded that it fell within the State's

margin of appreciation how to regulate the effects of the change of gender

on pre-existing marriages. In addition it considered that, should they chose

to divorce in order to allow the transsexual partner to obtain full gender

recognition, the fact that the applicants had the possibility to enter into a

civil partnership contributed to the proportionality of the gender recognition

regime complained of.

b. Application in the present case

54. The Court notes that Article 12 grants the right to marry to “men and

women”. The French version provides « l'homme et la femme ont le droit de

se marier ». Furthermore, Article 12 grants the right to found a family.

55. The applicants argued that the wording did not necessarily imply that

a man could only marry a woman and vice versa. The Court observes that,

looked at in isolation, the wording of Article 12 might be interpreted so as

not to exclude the marriage between two men or two women. However, in

contrast, all other substantive Articles of the Convention grant rights and

freedoms to “everyone” or state that “no one” is to be subjected to certain

types of prohibited treatment. The choice of wording in Article 12 must thus

be regarded as deliberate. Moreover, regard must be had to the historical

context in which the Convention was adopted. In the 1950s marriage was

clearly understood in the traditional sense of being a union between partners

of different sex.

56. As regards the connection between the right to marry and the right to

found a family, the Court has already held that the inability of any couple to

conceive or parent a child cannot be regarded as per se removing the right to

marry (Christine Goodwin, cited above, § 98). However, this finding does

not allow any conclusion regarding the issue of same-sex marriage.

57. In any case, the applicants did not rely mainly on the textual

interpretation of Article 12. In essence they relied on the Court's case-law

according to which the Convention is a living instrument which is to be

SCHALK AND KOPF v. AUSTRIA JUDGMENT 14

interpreted in present-day conditions (see E.B. v. France [GC],

no. 43546/02, § 92, ECHR 2008-..., and Christine Goodwin, cited above,

§§ 74-75). In the applicants' contention Article 12 should in present-day

conditions be read as granting same-sex couples access to marriage or, in

other words, as obliging member States to provide for such access in their

national laws.

58. The Court is not persuaded by the applicants' argument. Although, as

it noted in Christine Goodwin, the institution of marriage has undergone

major social changes since the adoption of the Convention, the Court notes

that there is no European consensus regarding same-sex marriage. At

present no more than six out of forty-seven Convention States allow

same-sex marriage (see paragraph 27 above).

59. As the respondent Government as well as the third-party

Government have rightly pointed out, the present case has to be

distinguished from Christine Goodwin. In that case (cited above, § 103) the

Court perceived a convergence of standards regarding marriage of

transsexuals in their assigned gender. Moreover, Christine Goodwin is

concerned with marriage of partners who are of different gender, if gender

is defined not by purely biological criteria but by taking other factors

including gender reassignment of one of the partners into account.

60. Turning to the comparison between Article 12 of the Convention and

Article 9 of the Charter of Fundamental Rights of the European Union (the

Charter), the Court has already noted that the latter has deliberately dropped

the reference to men and women (see Christine Goodwin, cited above,

§ 100). The commentary to the Charter, which became legally binding in

December 2009, confirms that Article 9 is meant to be broader in scope than

the corresponding articles in other human rights instruments (see

paragraph 25 above). 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. In the words of the commentary: “... it may

be argued that there is no obstacle to recognize same-sex relationships in the

context of marriage. There is however, no explicit requirement that

domestic laws should facilitate such marriages.”

61. 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. However, as matters stand, the question

whether or not to allow same-sex marriage is left to regulation by the

national law of the Contracting State.

62. In that connection the Court observes that marriage has deep-rooted

social and cultural connotations which may differ largely from one society


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DESCRIZIONE DISPENSA

La dispensa fa riferimento alle lezioni di Diritto Costituzionale Avanzato, tenute dal Prof. Francesco Cerrone nell'anno accademico 2011.
Il documento riporta il testo di una sentenza della Corte di Strasburgo in tema di tutela delle coppie omosessuali. La Corte dichiara che a seconda delle radici storico-culturali di un Paese si può parificarle o meno a quelle eterosessuali; ogni cultura ha la sua concezione di vita familiare e se questa concezione è rispettata non si incorre nella violazione del principio di non discriminazione.


DETTAGLI
Corso di laurea: Corso di laurea magistrale in giurisprudenza
SSD:
Università: Perugia - Unipg
A.A.: 2011-2012

I contenuti di questa pagina costituiscono rielaborazioni personali del Publisher Atreyu di informazioni apprese con la frequenza delle lezioni di Diritto Costituzionale Avanzato e studio autonomo di eventuali libri di riferimento in preparazione dell'esame finale o della tesi. Non devono intendersi come materiale ufficiale dell'università Perugia - Unipg o del prof Cerrone Francesco.

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