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European Court of Human Rights says marriage equality is not a human right

Marriage equality Right-wing

By Scottie Thomaston

The European Court of Human Rights, whose purpose is to hear claims related to alleged violations of the European Convention on Human Rights by contracting states, has ruled that same sex marriage is not a human right:

The[ judges] declared: ‘The European Convention on Human Rights does not require member states’ governments to grant same-sex couples access to marriage.’

The judges added that couples who are not married do not enjoy the same status as those who are.

‘With regard to married couples, the court considers that in view of the social, personal, and legal consequences of marriage, the applicants’ legal situation could not be said to be comparable to that of married couples.’

Seemingly echoing the same fear-based talking points that anti-gay groups in the United States resort to, family groups suggested that their concern is for the well-being of children and to prevent the decay of society. And:

Norman Wells, of the Family Education Trust, said: ‘For too long campaigners have been using the language of rights in an attempt to add moral force to what are nothing more than personal desires.

‘In many cases they have bypassed the democratic process and succeeded in imposing their views on the rest of the population by force of law.’

The ruling argues that civil unions are essentially good enough:

‘With regard to married couples, the court considers that in view of the social, personal, and legal consequences of marriage, the applicants’ legal situation could not be said to be comparable to that of married couples.’

The case originated from an attempt to adopt a child: a lesbian couple in a civil partnership was disallowed from adopting a child by French courts:

The court heard how one of the women had her application refused to adopt her partner’s child.

The pair, Valerie Gas and Nathalie Dubois, had tried to establish marriage rights under anti-discrimination laws but the judges said there had been no discrimination.

And, of course, no anti-gay action passes without celebration from the National Organization for Marriage:

NOM also praised the ruling, with special emphasis on the Court’s finding that there is “indirect discrimination founded (…) on the impossibility of marriage.”

The ruling can be read here.

60 Comments

  • 1. Ed Cortes  |  March 21, 2012 at 10:25 am

    I am grateful that we have the US Constitution here instead of the sets of laws that our ancestors left Europe to escape!

  • 2. Sagesse  |  March 21, 2012 at 10:34 am

    @

  • 3. Richard Lyon  |  March 21, 2012 at 10:45 am

    The European Convention on Human Rights is a post WW II creation. It is not what your ancestors were escaping from. No court has yet held that the US constitution provides a right to same sex marriage.

  • 4. JoeRH  |  March 21, 2012 at 10:50 am

    They've ruled MARRIAGE is a right…

  • 5. Scottie Thomaston  |  March 21, 2012 at 10:51 am

    Extremely. :(

    I admit I don't know much about human rights law in Europe, but I was pretty surprised by this.

  • 6. Richard Lyon  |  March 21, 2012 at 10:54 am

    But they haven't extended it to same sex marriage. The European and US courts would appear to be at about the same stage of legal development on the issue. The implication that US law is some kind of paragon on LGBT rights is a pretty far fetched notion.

  • 7. JoeRH  |  March 21, 2012 at 10:54 am

    I'm confused…"The judges added that couples who are not married do not enjoy the same status as those who are." Isn't that like saying water is wet?

    Also "With regard to married couples, the court considers that in view of the social, personal, and legal consequences of marriage, the applicants’ legal situation could not be said to be comparable to that of married couples." Why isn't it comparable? I'm sure it's some asinine reasoning, but I'm not clear on it.

  • 8. Scottie Thomaston  |  March 21, 2012 at 10:59 am

    Re your first question: I think what it means is that marriage confers special meaning that civil unions/civil partnerships do not. (Which is obvious to us anyway.) Married people have a higher status than those who aren't allowed to get married.

    I'm not sure about the second thing, honestly. That was confusing. But it seemed to be saying that civil unions are just fine for gays, but that they aren't the same as marriage.

  • 9. Steve  |  March 21, 2012 at 11:17 am

    Yeah, this is pretty is pretty similar to the US. The EU isn't actually a federation, but the individual countries don't want to cede too much authority to the EU either. And like SCOTUS, supranational EU courts don't want to get too far ahead of national law. Doing so would provoke backlash.

  • 10. Steve  |  March 21, 2012 at 11:18 am

    The whole argumentation is completely absurd. Yes, couples in civil unions don't have the same rights as in a marriage (which is especially true in France. Less so in the UK). That's the WHOLE point why they sued in the first place FFS!

  • 11. Sagesse  |  March 21, 2012 at 11:19 am

    I may be reading into it, but it sounds like the US 'leaving it to the states'. The European Court doesn't want to go there with a ruling that binds all the countries in the EU.

  • 12. Richard Lyon  |  March 21, 2012 at 11:21 am

    "Separate is never equal."

    MLK

  • 13. Steve  |  March 21, 2012 at 11:23 am

    Well, it can easily be argued that British civil partnerships are better than US same-sex marriages. Try to access federal benefits with an American SS marriage and see how far you get.

  • 14. Richard Lyon  |  March 21, 2012 at 11:29 am

    However, people in the UK are not satisfied with them.

    In the US DOMA has managed to create two tiers of marriage.

  • 15. Eric  |  March 21, 2012 at 11:29 am

    These are the same people that saw no problem with keeping us in the concentration camps after the war, no surprise here.

  • 16. karen in kalifornia  |  March 21, 2012 at 11:30 am

    To me the real story here is that in several European union countries gay couples CANNOT adopt.
    What's with that?

  • 17. Richard Lyon  |  March 21, 2012 at 11:30 am

    The European Convention on Human Rights is not part of the EU. There are 47 countries that participate in it.

  • 18. MarcosLB  |  March 21, 2012 at 11:32 am

    "the applicants’ legal situation could not be said to be comparable to that of married couples."

    Discrimination hurts. They should be ashamed of themselves. Heterosexism at it's worst.

  • 19. Californiaesque  |  March 21, 2012 at 11:53 am

    NOMbie in the room, and a couple of NOMbie lurkers.

  • 20. Californiaesque  |  March 21, 2012 at 11:54 am

    It's just a matter of time, Richard Lyon.

  • 21. Luke from Canada  |  March 21, 2012 at 12:11 pm

    technically did they not admit that civil unions are inferior due to them not being of the same status, therefore that would be descrimination. its one thing to have the option its another to have no choice

  • 22. erasure25  |  March 21, 2012 at 12:14 pm

    Funny that the conservatives say Obama "bows to European Capitals" (which I don't believe is true). In this case NOM is bowing to those darn socialists!

  • 23. rocketeer500  |  March 21, 2012 at 12:23 pm

    It's no surprise here. However, the European Court was between a rock and a hard place. Like with SCOTUS, the European Court doesn't want to get too far beyond the popular opinion. There are more countries that don't have marriage equality as there are those that do. If some of the larger countries, like the UK or France passed a marriage equality bill in their respective parliments, I think the decision would have been much different. What the court didn't want to do is to cause a schism within the EU over marriage equality.

    What needs to happen is that the UK, France, Germany, and even Ireland provide marriage equality.

  • 24. JoeRH  |  March 21, 2012 at 12:33 pm

    The fact that it's same sex doesn't matter. It's marriage. They've ruled on marriage and it being a right. That's it. There isn't marriage and same sex marriage, it's just marriage. And you're also wrong about courts denying the right to same sex marriage because of a US constitution issue. Many of the courts that have overturned anti-gay legislation, including denial of marriage rights, say that it goes against what the constitution says. I believe it's the 14th amendment they cite most often.

  • 25. JoeRH  |  March 21, 2012 at 12:41 pm

    Recent polls in the US show that the "popular opinion" is an approval of SSM (not so much in the South though, but they're notorious for promoting/condoning unjust discrimination), so the argument that SCOTUS is avoiding the issue because of popular opinion is hollow. This country is supposed to be a trendsetter, or at least not one to make policies based upon the opinions of other countries (particularly social issues), so I don't think the US would be affected if UK, France or Germany allowed marriage equality. There are plenty of other countries who have enacted same sex marriage laws already and they didn't have one bit of impact on decisions in this country.

  • 26. Jamie  |  March 21, 2012 at 12:44 pm

    This isn't really surprising. The European Court of Human Rights is a court that is quite different than our Supreme Court and operates more in an "advisory" role. Their "Convention on Human Rights" (roughly analogous to our Constitution) actually allows states to enforce laws to "for the protection of health or morals" and clearly states that "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." They don't have an equal protection clause, but rather have a clause that does not allow discrimination (sexual orientation is not included as protected). I think it will be hard for them to find a way to challenge this without changing the "Convention on Human Rights".

    On the other hand, The United State's Constitution does have an equal protection clause that requires that ALL laws apply equally to everyone. The Supreme Court has emphatically and repeatedly indicated that enforcing "morals" is not a valid reason for a law in and of itself, and that marriage is a "basic civil right", not one that can be abridged by state laws.

  • 27. Glen  |  March 21, 2012 at 12:53 pm

    This is correct.

    The European High Court generally goes with what the bulk of the nations are currently doing. They were not about to demand there be same-gender marriage equality on every European nation when only a handful are currently providing that.

    Once a greater number of nations are doing so, then the court will most assuredly mandate it on the remaining holdouts.

    It's not entirely a corollary to the United States, because States are not separate nations, and the Supreme Court can likely go with what they KNOW the Constitution to demand (equal treatment of the law), with the understanding that if the people don't like it, they can always amend the U.S. Constitution. (even though that would be highly unlikely to happen).

  • 28. JBell  |  March 21, 2012 at 12:58 pm

    People keep saying that the SCOTUS and the European courts "don't want to get too far ahead of public opinion". so, query: how did the US public feel about interracial marriage (Loving v. Virginia, 1967) when the SCOTUS ruled on that? About desegregation of schools (Brown v. Board of Education, 1954)? I'll assume that the (male) public was at least marginally amenable to women voting when the 19th amendment was upheld (Leser v. Garnett, 1922). What about Lawrence v. Texas (2003)? CSI was still painting targets on the backs of transsexuals, prostitutes, and infantilists, but was the public really okay with homosexual activity?

  • 29. Richard Lyon  |  March 21, 2012 at 1:03 pm

    In all of those cases that you mention the Supreme Court waited until a majority of the states had abolished the laws that they were ruling against. They were all a matter of bringing the south into line with most of the rest of the country.

  • 30. chris hogan  |  March 21, 2012 at 1:08 pm

    "With regard to married couples, the court considers that in view of the social, personal, and legal consequences of marriage, the applicants’ legal situation could not be said to be comparable to that of married couples.'"

    Uh, could you elaberate on the many "differences" please?

  • 31. Jamie  |  March 21, 2012 at 1:13 pm

    A majority of the states never had the laws in question, so that's not really that relevant. When the Supreme Court ruled in 1967 that interracial couples were alllowed to marry, some 75% of Americans thought that they should be banned. It wasn't until 1990, that a majority of Americans though blacks and whites should be allowed to marry!

  • 32. David X  |  March 21, 2012 at 1:19 pm

    How interesting. They say marriage is not a human right but then acknowledge that not having the ability to marry diminishes one's status in society. They apparently believe that some people are more equal than others.

    If the folks a NOM believe that sort of thinking is so right on, I invite them all to emmigrate to one of those member nations where they can live amongst like minded folks. I, for one, would be willing to help them pack.

  • 33. Richard Lyon  |  March 21, 2012 at 1:25 pm

    I think it's reasonable to say that the courts are looking for a historical tipping point on controversial issues. Obviously if they waited for 100% of public opinion, nothing would ever change. Here's a Wiki article on the history of anti-miscegenation law in the US.
    http://en.wikipedia.org/wiki/Anti-miscegenation_l

    They were highly prevalent all over the country and had been gradually repealed. At one point a majority of state did have such laws. I think that is in fact particularly relevant to the issue. The courts are typically cautious about pushing social change.

  • 34. Steve  |  March 21, 2012 at 1:27 pm

    No, they aren't

  • 35. Steve  |  March 21, 2012 at 1:29 pm

    Technically their argument is. "No, you can't adopt, because you aren't married. No, you can't get married. Now fuck off."

    It should also be noted that this wasn't even about joint adoption, but about second-parent adoption. One of them was already the biological mother, but they made some absurd claims that allowing both of them to be legal parents would somehow hurt the child

  • 36. Steve  |  March 21, 2012 at 1:33 pm

    But likewise, the US has also a very sorry track record of actually living up to its ideals. Slavery, women's rights, segregation and now gay rights. Politicians and judges have always found reasons why one group is more equal than others and for why some groups don't deserve protections. "Not enforcing morals" is a rather recent innovation.

  • 37. David X  |  March 21, 2012 at 2:05 pm

    US law is designed to protect the rights of all Americans. That's why the statue of Lady Justice is depicted wearing a blindfold. As a gay man, I would not be in favor of the law being a "paragon on LGBT rights" they should be a paragon on human rights. Period.

    Your statement that no US court has yet held that the US constitution provides a right to same sex marriage is not entirely accurate. In the US District Court for the Northern District of California Judge Vaughn Walker cited the Constitution of the United States of America in finding that Proposition 8 was unconstitutional (see Pages 108 and 109 of his ruling). That decision was upheld by the 9th Circuit Court of appeals which is also federal court. While the Prop 8 proponents have requested a further en banc hearing of the case, and although the words "same sex" indeed do not appear in the constitution, it is none the less inaccurate and misleading to say that no US court has yet held that the US constitution provides a right to same sex marriage. The constitution doesn't mention the words "mixed race marriage" either but it is unconstitutional to deny the right to marry to mixed race couples.

  • 38. David  |  March 21, 2012 at 2:07 pm

    Too right we're not satisfied with them. What we're going to enjoy over the next few days is the normally Euro-sceptic parts of the Press that write tirade after tirade against the ECHR and its "political correctness gone MAAAAAADDD!!!" will now be singing their praises. Funny old world eh?

    Our government is very likely to ignore the ruling and press ahead. The junior partner in the Coalition REALLY wants marriage equality and I'm certain that the parties have agreed to push for it in exchange for the senior partner getting the tax cuts it wanted. They've also been extremely public about supporting it. Too much at stake for them to do a u-turn.

  • 39. David  |  March 21, 2012 at 2:08 pm

    I know judges are known to carry on working past the traditional retirement age, but I'll be surprised if the current members of the Court are quite that old.

  • 40. MightyAcorn  |  March 21, 2012 at 2:11 pm

    Um…I believe the federal District Court in California ruled that Prop 8 was unconstitutional, citing equal protection. The U.S. Constitution doesn't explicitly grant heterosexual marriage rights, but it does guarantee equal protection and and a federal court HAS made that determination pertaining to marriage.

    You can read that decision here: http://www.scribd.com/doc/35374462/Prop-8-Ruling-
    Page 117 will be of interest.

  • 41. David  |  March 21, 2012 at 2:15 pm

    France currently has a centre-right government that has resisted progress on LGBT rights. The S-O-C-I-A-L-I-S-T Party is expected to win the coming elections, and have promised reform. Cross your fingers for a Francoise Hollande victory.

  • 42. Richard Lyon  |  March 21, 2012 at 2:19 pm

    It's in process. As I understand it, the 9th circuit did not uphold the entirety of Walker's decision but opted for a narrow ruling. It is a very first step and is by no means settled law as yet. I personally hope that it becomes so in due course. I still think that it is a fair characterization to say that US and European law are at a similar stage of development in terms of marriage equality.

  • 43. Steve  |  March 21, 2012 at 3:09 pm

    Same reason gay couples can't adopt in certain US states

    Note that this was about a second parent adoption, which really shouldn't be controversial.

  • 44. Steve  |  March 21, 2012 at 4:58 pm

    I bet the Republican anti-marriage equality legislators will now decry that US Courts should follow foreign law.

  • 45. Jamie  |  March 21, 2012 at 5:21 pm

    How so? when the Supreme Court ruled on Loving v. Virginia, 75% of Americans disagreed with the decision. They had to send national guard troops to a number of states after Brown v. Board of Education decision was announced. I remember riots following the 1989 decision to allow flag burning, a decision some 90% of Americans STILL disagree with. The Supreme Court recently said corporations were people and struck down campaign finance laws of the vast number of states with a single ruling. The image of the Supreme Court as some sort of nervous nellie isn't based on any facts or reality. They understand that their role is to protect all Americans based on the Constitution. That's not a responsibility that they take lightly.

  • 46. Richard Lyon  |  March 21, 2012 at 5:28 pm

    I never said nor implied that they are nervous nellies. I said that they feel their way to a historical tipping point. The sense of when that is reached varies greatly depending on the membership of the court. The Warren court was a high water mark of judicial activism. The Roberts court is most certainly not.

  • 47. Bob  |  March 21, 2012 at 6:48 pm

    got mine crossed,,,, go France,,,,, this really is a global fight,,,,,

  • 48. Deeelaaach  |  March 21, 2012 at 11:02 pm

    As an aside, I've heard it said that the EU is somewhat comparable to our Articles of Confederation that we operated primarily under during the Revolutionary War.

  • 49. Deeelaaach  |  March 21, 2012 at 11:09 pm

    And the Constitution doesn't marriage "opposite sex" either, nor heterosexual or homosexual ("homosexual" was coined in the last 150 years or so), nor does it mention "marriage" at all. In fact, the only rights it mentions are in the Bill of Rights.

    The Constitution, for those of you who claim to know what's in it but haven't read it since high school if you even read it then, (I've read it twice within the past year) is a document that outlines our government organization including the judicial branch, not specific laws. If you hold that the Constitution does not allow marriage equality, you must also hold that heterosexual marriages are invalid. So you heterosexuals are *living in SIN!* Okay, so you're not living in sin, and neither are we.

  • 50. Bill S.  |  March 22, 2012 at 1:18 am

    Does the European Court of Human rights operate on a civil law basis or a common law basis?

    In civil law it is nearly impossible to "overturn" existing laws as it is incompatible with the philosophy that the law is meticulously codified and each judge applies the law de novo to whatever situation is before it. This is why the French Supreme Court, despite being in a very liberal country, did not rule that the law mandated equal marriage. They had no choice because the law, as codified, did not allow for it.

    There is no "precedent" or "case law" to work off of.

    I'm basing this guess off of what seems to us ridiculous reasoning of, as one poster pointed out: "The whole argumentation is completely absurd. Yes, couples in civil unions don't have the same rights as in a marriage (which is especially true in France. Less so in the UK). That's the WHOLE point why they sued in the first place FFS!"

  • 51. No-Obot  |  March 22, 2012 at 6:49 am

    The Warren court was a high water mark of judicial COURAGE…activism is often used as an implied-bias political term.

  • 52. Steve  |  March 22, 2012 at 6:57 am

    They decide based on the European Convention on Human Rights, which is an international treaty that sets down basic rights, not just on national law.

    Also in Europe, only the UK (minus Scotland) and Ireland use common law

  • 53. Bill S.  |  March 22, 2012 at 7:47 am

    I read the decision linked in the article. This doesn't seem to be a gay marriage case. The decision, which is only 3 pages long, mentions a prior decision from 2010 from the same court which found that the Convention on Human Rights does not require the adoption of same-sex marriage.

    This case deals with gay adoption: the French government did not allow a lesbian couple to file for a second-parent adoption of one of the partner's biological children because they were not married. The Court found this act not discriminatory because unmarried straight couples are also barred from doing the same thing. Should France legalize same-sex marriage, presumably they would not be allowed to forbid a same-sex couple from jointly adopting a child if they allow the same for opposite-sex married couples.

  • 54. Bill S.  |  March 22, 2012 at 7:53 am

    Also, I looked up the European Convention on Human Rights and it clearly does not allow for equal marriage. It was drafted in the 1950s, and probably was not worded with the express intention of forbidding gay marriages, but merely out of an assumption that only opposite-sex couples could possibly ever get married.

    On marriage, this Convention reads:

    "A partir de l’âge nubile, l’homme et la femme ont le droit de se marier et de fonder une famille selon les lois nationales régissant l’exercice de ce droit."

    My translation:

    "From nubile (marriageable) age, a man and a woman have the right to get married and to found a family according to the national laws governing the exercise of this right."

    This clearly does not require any member state to adopt same-sex marriage.

  • 55. Steve  |  March 22, 2012 at 9:12 am

    True and it follows other decisions that came to the same conclusion. But in this case it's still ridiculous. They can't adopt because they can't get married. But they can't get married either. It's a catch-22 and discriminatory on its face. They had to resort to an overly literal interpretation to come to that conclusion. It might have been a better idea to sue for adoption rights instead of marriage.

    The "protect the children" argument is also particularly ridiculous in the case of second parent adoption. One of them is already the biological and legal mother. Unlike with a joint adoption, there is no chance that the child could be raised with a straight couple instead. All they do is disadvantage the child

  • 56. Bill S.  |  March 22, 2012 at 9:19 am

    They were suing for adoption rights, not marriage rights. They lost because the French government would have treated an opposite-sex unmarried couple in the exact same manner regarding adoption. The fact that the French government does not treat same-sex and opposite-sex married couples in the same manner regarding *marriage* was not the subject of this lawsuit, nor would it have resulted in a positive ruling even if it had been, as the Convention clearly, as I wrote above, does not mandate equal marriage. I wish it did, but the law is what it is, and that's what the judges have to apply.

  • 57. Steve  |  March 22, 2012 at 9:26 am

    Yep, they aren't anti-gay per se. Far from it. It was the same court that killed the UK's ban on gay people serving in the military for example. They've also repeatedly ruled that states can't intrude on people's private lives just because they are gay. They also ruled anti-sodomy laws illegal back in the 80s.
    http://en.wikipedia.org/wiki/List_of_LGBT-related

    There are tons of pro-gay decisions there. They really lag behind in family law however, which is an area that has been traditionally left to the discretion of individual countries

  • 58. Steve  |  March 22, 2012 at 10:17 am

    If it's not about marriage, then they don't have to apply laws about marriage. It's that simple. There are plenty of countries that allow some forms of adoption without being married. As said, they could easily have distinguished between joint adoption and second parent/step parent adoption.

    As said, it's a lazy ruling made out of political considerations, not legal ones.

  • 59. Bill S.  |  March 22, 2012 at 11:19 am

    That would be interfering with France's family law. Should France allow unmarried couples to jointly adopt? Maybe…but that isn't the concern of the European Human Rights Court. France treats all unmarried couples equally…not married, then no adoption. Gay or Straight.

    Their marriage laws are not equal, but the Human Rights Convention does not require them to be.

  • 60. SiobhanC  |  March 23, 2012 at 8:49 am

    I'm a British pro-Europe/EU/ECHR LGBT person so I'm pissed off. it is pretty sickening that those who hate europe suddenly like the ECHR. We have a long way to go to enshrine our rights. *sigh*

    I'm no fan of the coalition (ha, understatement) But I'm glad that SSM is probably happening. Civil Partnerships were big at the time and basically equal but we should all be able to marry.

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