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Article 12 of the European Convention on Human Rights Article 12 of the European Convention on Human Rights guarantees the right to marry. The European Court of Human Rights interprets the Convention to ensure that European states uphold their commitment to ‘secure to everyone within their jurisdiction the rights and freedoms’ contained in the Convention. The Court refuses to recognize that Article 12 provides same-sex couples with the right to marry. Therefore, although same-sex couples can marry in 11 of the 47 European states contracted to the Convention (Belgium, Denmark, France, Iceland, Luxembourg, Netherlands, Norway, Portugal, Spain, Sweden, United Kingdom excluding Northern Ireland), same-sex couples in Europe have no guaranteed human right to marry under Article 12. Nine of the European states that permit same-sex couples to marry were among the first signatories of the Convention who made the commitment in 1950, as ‘European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law’, to guarantee human rights to everyone. All 47 European states, including those that signed the Convention much later, are bound to this collective commitment. If the European Court of Human Rights upheld a complaint brought by a same-sex couple under Article 12 of the Convention about their inability to marry in one of the 36 European states that do not permit the marriage of samesex couples, this would set a new human rights standard for Europe. The European Court of Human Rights can establish that same-sex couples in Europe, just like opposite-sex couples, have a human right to marry.

Does Article 12 include same-sex couples? Article 12 says:

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. Article 12 protects the right of all ‘men and women of marriageable age’ to marry. It does not specify that men can only marry women or women can only marry men. On the contrary, the only specification that Article 12 attaches to marriage relates to age, not the sex of the partners. Furthermore, Article 1 of the Convention obliges states to secure to everyone all of the rights and freedoms in the Convention. The right to marry is not dependent on founding a family. The Court has determined that founding a family is not a condition of the right to marry and, furthermore, any inability of any couple to conceive or parent a child cannot be regarded as removing their right to enjoy the right to marry. Furthermore, the Court has recognized that for the purposes of Article 8 of the Convention (which guarantees the right to respect for family life) the relationship of a same-sex couple constitutes a ‘family’. Therefore, the reference to ‘family’ in Article 12 is no bar to recognizing the right of same-sex couples to marry. Although Article 12 says that the exercise of the right to marry shall be subject to the national laws in each European state, the Court has determined that any national limitations 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. This is because national laws may only govern the ‘exercise’ of the right to marry, not prohibit it absolutely. If the ‘men and women’ referred to in Article 12 is interpreted to include persons who want to marry someone of the same sex, then national laws that prohibit this must be seen to impair the very essence of the right to marry.

What has the European Court of Human Rights said about Article 12 and same-sex couples?

1986

In Rees v the United Kingdom the Court said: ‘the right to marry guaranteed by Article 12 refers to the traditional marriage between persons of opposite biological sex’.

1989

In C. and L.M. v the United Kingdom, the relationship between two women who were cohabiting was deemed (by the former European Commission of Human Rights) to ‘not give rise to a right to marry and found a family within the meaning of Article 12’.

2010

In Schalk and Kopf v Austria the Court stated that it ‘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’ but went on to say that ‘as matters stand, the question whether or not to allow samesex marriage is left to regulation by the national law of the Contracting State’.

2014

In Hämäläinen v Finland the Grand Chamber of the Court (that is, 17 judges sitting together) stated that ‘Article 12 cannot be construed as imposing an obligation on the Contracting States to grant access to marriage to same-sex couples’.

A dissenting voice Although the European Court of Human Rights has not been supportive of the claim that same-sex couples should be guaranteed the right to marry under Article 12, a dissenting voice from 1989 in the former European Commission of Human Rights is an important reminder of the long-standing demand and need to have this right recognized:

the right to marry and to found a family […] cannot be set aside in the public interest […] The right to live in a family and – when of marriageable age – to found

a

family

is

of

paramount

importance for the individual. Denial of this

right

means

condemnation

to

solitude and loneliness. There must be strong arguments to justify such a condemnation.

In

my

opinion

the

fundamental human right underlying Article 12 should […] be granted to homosexual and lesbian couples. They should not be denied the right to found a family without good reasons. Dissenting opinion of Henry Schermers, W. v the United Kingdom, Commission decision, 7 March 1989.

What next for the European Court of Human Rights? The European Court of Human Rights currently has the following complaints pending before it, in response to which it could depart from its previous jurisprudence and establish that an exclusion of same-sex couples from marriage is a violation of Article 12:

Orlandi and Others v Italy These applicants are same-sex couples who complain about the refusal of the Italian authorities to register their marriages contracted abroad and their inability to have any other legal recognition of their relationships in Italy.

Oliari and Others v Italy These applicants are same-sex couples who complain about their inability to marry, or contract any other type of civil union, in Italy.

Chapin and Charpentier v France The applicants in this case are a same-sex couple who complaint that, after they were married by the mayor of Bègles (Gironde), they had their marriage declared null and void by the courts. This complaint was filed before France legalized the marriage of same-sex couples.

This short guide was produced by Paul Johnson

www.echrso.blogspot.co.uk September 2014