Wednesday, 29 April 2015

The Christian-inspired European Centre for Law and Justice seeks to prevent the ECtHR from recognising same-sex marriage

The (bizarrely named) European Centre for Law and Justice (ECLJ), a 'Christian-inspired organisation', has released its 12 page third party intervention into Orlandi and Others v Italy and Oliari and Others v ItalyBoth complaints concern the inability of same-sex partners to contract marriage in Italy or have their overseas marriages recognised under Italian law. 

The ECLJ provide copious reasons for why the European Court of Human Rights should not uphold the applicants' complaints. 

Here are a few choice picks (with some comment by me):

"The applicants’ situation does not fall within the scope of Article 12. The applicants are excluded from the scope of this Article as the Convention guarantee of the “right to marry and found a family” is reserved only to couples consisting of a man and a woman."
The question of whether same-sex couples are 'excluded from the scope' of Article 12 is debatable. As I argued in a recent article that I published in European Law Review, the Court has consistently held that Article 12 is applicable only to opposite-sex couples. However, in Schalk and Kopf v Austria, the Court did indicate that there may be circumstances when the right to marry enshrined in Article 12 might not be limited to opposite-sex couples (in light of this it concluded that 'it cannot be said that Article 12 is inapplicable' to same-sex couples). The ECLJ will no doubt be pleased to know that, since Schalk and Kopf, the Court has never strayed into this territory again and, more significantly, Article 12 was implicitly deemed inapplicable by the Grand Chamber in Hämäläinen v. Finlandcommented on this at the time. 
"The right to marry was not conceived as an autonomous and subjective right or as an individual freedom. The right to marry is almost incidental to that of founding a family: it is an instrument at its service. It appears thus in all the declarations of rights within which marriage and founding a family are one and the same right [...] This wording shows that marriage is 'an institution which forms a part of society' at the service of the family: marriage is an instrument which serves the end goal of the family. Thus, the conditions and impediments to marriage are not arbitrary but are the consequences of the ultimate aim of marriage. These conditions are, above all, natural: they concern marriageable age, that is the ability to procreate; the difference of sex of the spouses, which is also a condition of procreation; and consanguinity, which is a barrier to healthy procreation."
The ECLJ will not be pleased to know that most of their points here are redundant, not least because in Goodwin v the United Kingdom the Grand Chamber of the Court determined that founding a family is not a condition of the right to marry and that the inability of any couple to conceive or parent a child cannot be regarded as per se removing their enjoyment of the right to marry. 
"Until recently, it was not necessary to specify that the right to marriage exclusively benefits couples comprised of a man and a woman. It is nevertheless explicitly stated in the European Convention on Human Rights, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights of 1966. A large number of international treaties also concern the relations of men and women as spouses such as the Convention on the Nationality of married women of 1957. The United Nations Human Right Committee has held that the right to marry and to found a family guaranteed by Article 23 § 2 of the ICCPR must be understood as being deliberately and exclusively reserved for men and women, because it is “the only substantive provision in the Covenant which defines a right by using the term 'men and women', rather than 'every human being', 'everyone' and 'all persons'".
The words 'men and women' included in the right to marry in the European Convention on Human Rights are not designed to exclude same-sex couples. The historical evidence relating to the drafting process, which is publicly available to anyone, demonstrates without question that when the drafters of the Convention formulated the right to marriage in this way it had nothing to do with limiting the right to opposite-sex couples.


Obiter dictum 

Jesus said: "A new command I give you: Love one another. As I have loved you, so you must love one another" (John 13:34). Have the ECLJ read their Bibles lately? 

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