Same-sex marriage and Article 3 ECHR: a new approach to addressing marriage discrimination

Paul Johnson and Silvia Falcetta

During recent months, we have been carrying out research on the utility of Article 3 of the European Convention on Human Rights for addressing discrimination on the grounds of sexual orientation.

Article 3 of the Convention provides the absolute guarantee that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment”. Given the scope of this guarantee, one might expect that Article 3 would have been a key provision for addressing the wide spectrum of ill-treatment to which individuals have been subjected because of their sexual orientation. However, since the Convention entered into force in 1953, Article 3 has rarely been utilized to address sexual orientation discrimination, and it was not until 2012 that a complaint brought under Article 3 about sexual orientation discrimination succeeded in the European Court of Human Rights.

In an article to be published in European Law Review, we provide a critical analysis of the history and evolution of the Court’s Article 3 jurisprudence in order to assess the ways in which this has developed the protection of sexual minorities in Europe. We identify major gaps in this protection, most notably in respect of asylum, and argue that the Court’s Article 3 jurisprudence should be further evolved to address these.

A key focus of our research is on how sexual minorities might better and more creatively use Article 3 of the Convention in the future to address discrimination against them. One area of discrimination we focus on specifically is in respect of marriage.

Article 3 and same-sex marriage

Article 3 of the Convention has never been invoked in a complaint to the European Court of Human Rights about the lack of access to or legal recognition of same-sex marriage. This is not wholly surprising because the Convention contains a substantive provision on marriage, enshrined in Article 12, which has been the principal focus of same-sex marriage cases both in the Court and in domestic courts in Council of Europe states. However, the key problem for those seeking marriage equality under Article 12 of the Convention is that the Court has held that this provision is founded on the concept of a “union between partners of different sex” (Schalk and Kopf v Austria, para 55) and has consistently held that it “does not impose an obligation on [a] Government to grant a same-sex couple […] access to marriage” (Oliari and Others v Italy, para 192). As a consequence, the Court maintains the inflexible view that same-sex couples have no recourse under Article 12 to being excluded from the rights and benefits attached to marriage.

The question that arises, therefore, is how it might be possible for same-sex couples to break down the “heteronormative firewall” that the Court has built around marriage. We argue that Article 3 provides such a possibility. It does so, we suggest, because Article 3 offers the opportunity to address and eradicate marriage discrimination from the standpoint of “human dignity”, respect for which is the “very essence of the Convention” (Bouyid v Belgium [GC], para 89) and “one of the most fundamental values of democratic society” (Z. and Others v the United Kingdom [GC], para 73).

The close connection between the right to marry and respect for human dignity has been thoroughly explored by courts as well as by scholars. For example, the Supreme Court of the United States of America recognized that “the transcendent importance of marriage” is the “nobility and dignity” it offers to couples, and that same-sex couples seeking access to marriage are asking “for equal dignity in the eyes of the law” (Obergefell v Hodges, 576 U.S._ (2015) 3 and 28). We think that when same-sex couples go to the European Court of Human Rights with complaints about marriage discrimination they are highlighting forms of subjective distress and injurious effects that strike at the very core of their human dignity.

Our proposition is that the damage to human dignity created by exclusion from marriage can be argued to amount to degrading treatment within the meaning of Article 3 of the Convention. Through a comprehensive assessment of the Court’s jurisprudence, we consider it reasonable and persuasive to argue that being denied access to marriage, on the basis of sexual orientation, causes forms of personal suffering and humiliation that reach the threshold set by the Court to be deemed degrading treatment under Article 3. This is because there are an extensive number of ways in which, as a result of being excluded from marriage, same-sex couples suffer humiliation and debasement in their own eyes and the eyes of others, are driven to act against their will or conscience, are treated with a lack of respect, and are diminished in the societies in which they live – forms of suffering which, in other contexts, have been held by the Court to be degrading within the terms of Article 3 (M.C. and A.C. v Romania, para 108).

We recognize that some may argue against our claim that denying same-sex couples access to marry amounts to degrading treatment contrary to Article 3 of the Convention. We seek to address, in our article, some of the legal and other arguments that might be put forward against our proposition. However, when we consider the types of treatment that the Court has considered as “degrading” in the past – for example, depriving a person in prison of his reading glasses (Slyusarev v Russia, paras 43-44) – we argue that there is scope to extend this provision to recognize the exclusion from marriage as a form of ill-treatment that is prohibited by the Convention.

The great value of seeking to address the issue of same-sex marriage under Article 3 is that it escapes the confines of Article 12 and, in doing so, avoids historical questions concerning whether the wording of the right to marry refers only to unions between men and women. This may be useful in the domestic courts, as well as the European Court of Human Rights.

For example, in cases concerning marriage discrimination in Northern Ireland, although it was recognized that the exclusion of same-sex couples from marriage created “psychiatric damage caused by isolation, insult and disapproval”, the High Court was “driven to conclude that the Convention rights of the applicants have not been violated” because “the Strasbourg Court does not recognise a ‘right’ to same sex marriage” (Close et al [2017] NIQB 79). The High Court reached this conclusion principally by considering the issue under Article 12 of the Convention and following the jurisprudence of the European Court of Human Rights on that Article. Our view is that a more fruitful way of addressing the “psychiatric damage caused by isolation, insult and disapproval” caused by excluding same-sex couples from marriage is to recognize that such “damage” is the result of a form of degrading treatment that is prohibited by the Convention under Article 3.

Reading our research

Our research will be published in European Law Review in mid 2018. However, any academic or practitioner who would like a pre-print copy of the article can request one from silvia.falcetta@york.ac.uk