Thursday, 12 February 2015

Can the Court's jurisprudence on 'de facto marriage' provide a basis to encourage it to recognize the right of same-sex couples to marry?

The International Journal of Law, Policy and the Family have published my article 'Marriage, Heteronormativity, and the European Court of Human Rights: A Reappraisal'.

The premise of this article is that the European Court of Human Rights' jurisprudence relating to 'de facto marriage' provides a useful basis for rethinking the Court's approach to same-sex marriage.

Currently, the Court maintains a clear view that same-sex couples have no right to marry under Article 12 of the European Convention on Human Rights. Because of this, Contracting States are given unlimited discretion (margin of appreciation) to limit access to marriage, and the rights and benefits that flow from it, to different-sex couples.

However, in judgments issued over the last decade, the Court has found in favour of applicants who complained about laws that gave rights and benefits to couples living 'like that of a marriage' or in 'de facto marital cohabitation' but restricted these to opposite-sex couples. In light of this, I reappraise the prevailing view that, in respect of issues relating to same-sex couples, the Court will not 'go near' marriage.

 

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