Italy violated the ECHR by refusing to give some recognition to same-sex couples married abroad: Orlandi and Others v Italy

The First Section of the European Court of Human Rights has today issued its judgment in the case of Orlandi and Others v Italy

The case concerns six same-sex couples who complained that the refusal of the Italian authorities to register their marriages contracted abroad, and more generally the impossibility of obtaining legal recognition of their relationship in Italy - which, at the time of the complaint did not allow for marriage between persons of the same sex nor provide for any other type of union which could give them legal recognition - violated their rights under Articles 8, 12 and 14 of the European Convention on Human Rights.

Article 8 of the Convention

The applicants complained under Article 8 that on their return to Italy from abroad they were refused registration of their marriages, either as marriages or under any other form, depriving them of any legal protection or associated rights.

In response, the Court reiterated that States are free, under Article 12 of the Convention as well as under Article 14 taken in conjunction with Article 8, to restrict access to marriage to different-sex couples. 

Nevertheless, the Court noted that it has acknowledged that same-sex couples are in need of legal recognition and protection of their relationships.

The majority concluded: 
"...the Italian State could not reasonably disregard the situation of the applicants which corresponded to a family life within the meaning of Article 8 of the Convention, without offering the applicants a means to safeguard their relationship. However, until recently, the national authorities failed to recognise that situation or provide any form of protection to the applicants’ union, as a result of the legal vacuum which existed in Italian law (in so far as it did not provide for any union capable of safeguarding the applicants’ relationship before 2016). It follows that the State failed to strike a fair balance between any competing interests in so far as they failed to ensure that the applicants had available a specific legal framework providing for the recognition and protection of their same-sex unions".
On this basis, the Court concluded there had been a violation of Article 8.

Article 14 in conjunction with Article 8 or 12 of the Convention

The Court concluded that it was not necessary to examine whether there had been a violation under these Articles.

First thoughts on the judgment...

In one sense, the judgment in this case may appear to be disappointing because it adds little or nothing to the Court's jurisprudence on same-sex marriage. For the same-sex couples who married abroad and sought legal recognition of their marriages in Italy, the Court reminds them that no right to same-sex marriage flows from the Convention and, therefore, "States must in principle be afforded a wide margin of appreciation, regarding the decision as to whether to register, as marriages, such marriages contracted abroad".

Moreover, by refusing to even consider a complaint about the non-recognition of marriage under Article 12 (in conjunction with Article 14) the Court continues to send the message that, to put it prosaically, the right to marry enshrined in Article 12 has nothing to do with same-sex couples. So much, then, for the statement in Schalk and Kopf v Austria seven years ago that "the Court 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". 

The judgment adds, in my view, to the general confusion in the Court's case law about the applicability of Article 12 to same-sex couples, which has resulted in complaints about marriage discrimination brought by same-sex couples being handled by the Court in very different ways: some have been declared admissible but no violation has been found, some have been declared inadmissible, and some have been said to not require examination. 

The question of "applicability", which I think remains axiomatic to complaints brought under Article 12 regarding same-sex marriage, is addressed specifically in the judgment. The majority state that 
"[s]ince the Court has already held Article 12 to be applicable to a same sex-couple wishing to marry, the provision must also be applicable to same-sex couples who are already married under the domestic system of another State". 
However, I have sympathy with the long consideration given by Dissenting Judges Pejchal and Wojtyczek to the issue of "applicability". Although I do not share their substantive view of Article 12 ("[g]ranting access to marriage within the meaning of Article 12 to same-sex couples is conceptually impossible") I do understand why they challenge the majority on the question of applicability. 

As I have stated before: if Article 12 "applies" to same-sex couples, then the Court needs to explain how depriving same-sex couples of the right to marry (or, in this case, not recognising a same-sex marriage contracted abroad) meets its own requirement that a State cannot "restrict or reduce the right [to marry] in such a way or to such an extent that the very essence of the right is impaired" (Rees v the United Kingdom) and, therefore, "may not [...] deprive a person or a category of persons of full legal capacity of the right to marry with the partners of their choice" (O'Donoghue and Others v the United Kingdom). I remain of the opinion that stating that Article 12 can apply to same-sex couples in some circumstances, declaring a complaint by a same-sex couple about their exclusion from marriage admissible, and then finding that such exclusion does not violate Article 12 of the Convention, is an illogical approach. In my view, Article 12, as I explained here, remains, in practical terms, inapplicable to same-sex couples. 

One clearly positive aspect of this judgment, however, is that it reiterates the Court's view that same-sex couples should be provided with a "specific legal framework providing for the recognition and protection of their same-sex unions" and, crucially, to not provide such a framework is in violation of the right to respect for family life enshrined in Article 8 of the Convention.

I also note slight glimmers of positive change in the Court's language relating to marriage. For instance, the Court states that "States are still free, under Article 12 of the Convention ... to restrict access to marriage to different-sex couples". Dissenting Judges Pejchal and Wojtyczek do not like the use of the word "still" which, I agree, "suggests the Court intends to revise this view in the future". The Court also states that the decision of a State not to permit same-sex marriage is "not condemnable under the Convention" and the introduction of the word "condemnable" is stronger than any language the Court has previously used, which opens up the opportunity to consider whether such a decision should be condemned. 

The Dissenting Opinion of Judges Pejchal and Wojtyczek

I think it is important to note the extremely disappointing comments made by Judges Pejchal (Czech Republic) and Wojtyczek (Poland) who go to great lengths to make one of the most explicitly heteronormative (and, some might say, homophobic) interpretation of the Convention ever written into a judgment of the Court (although, for some others, see here). 

Judges Pejchal and Wojtyczek argue that, for instance, "the family unit is founded primarily by a man and a woman through marriage" and that this is reflected in the right to respect for family life contained in Article 8 - a view which the Court has consistently rejected since 2010. 

Moreover, Judges Pejchal and Wojtyczek go to great lengths to establish that the fundamental meaning of marriage is based on a relationship between a man and a woman:
"Marriage in its initial meaning presupposes the community of lives between a man and a woman. We note in this context the following definitions of marriage: “Nuptiae sunt coniunctio maris et feminae et consortium omnis vitae, divini et humani iuriscommunicatio” (Modestinus, Digesta Iustiniani 23.2.1); “Nuptiae autem sive matrimonium est viri et mulieris coniunctio, individuam consuetudinem vitae continens” (Institutiones Iustiniani, 1.10). The complementariness of the biological sexes of the two spouses is a constitutive element of marriage. Moreover, marriage in this meaning is - by definition - a social institution open to procreation. The fact that certain married couples may suffer from infertility does not affect its social function. Marriage in its second meaning designates a union of two persons living together. The term “marriage” in this second sense has a different connotation and a different denotation to the term “marriage” as used in the first meaning. This second meaning has developed only recently. Granting access to marriage within the meaning of Article 12 to same-sex couples is conceptually impossible. “Extending” the scope of the right to marry to homosexual couples presupposes that the term “marriage” is used in a different meaning (that is, the second meaning explained above)."
One might wonder how, in relying on texts from at least 1500 years ago to inform their view of Article 12 and the world generally, Judges Pejchal and Wojtyczek meet the long-standing requirement placed on them to consider the European Convention on Human Rights as a living instrument that must be interpreted in the light of present-day conditions. 

Judges Pejchal and Wojtyczek also state that the Court "has no mandate to favour or inhibit societal changes". This flies in the face of general Convention jurisprudence. The Court has long established that the Convention is a "constitutional instrument of European public order” and this has led it to require changes in States in order to meet the standards of the Convention. In this sense, Judges Pejchal and Wojtyczek are wrong to end their dissenting opinion with the parting-shot that there can be “no social transformation without representation” because, clearly, all sorts of social transformation result from the judgments of the Court that go against the representations made by States. Perhaps it would have been more honest of Judges Pejchal and Wojtyczek to say that they do not favour the "social transformation" under consideration in the judgment.