LETTER TO THE COMMISSIONER FOR HUMAN RIGHTS ABOUT SAME-SEX COUPLES AND THE RIGHT TO MARRY

It's been four months since I sent this letter to the Commissioner for Human Rights of the Council of Europe, asking for a view on the European Court of Human Rights' position on same-sex marriage. 

I have received no response. 

Although Commissioner Nils Muižnieks has now been replaced by Commissioner Dunja Mijatović, I am still hoping that I will receive a response to my letter.

The reason for sending the letter, as I explained four months ago, is as follows...

In the paper that Silvia Falcetta and I recently completed on the right to marry guaranteed by Article 12 of the Convention, we reached the conclusion that “any applicability of Article 12 to same-sex couples suggested by the Court’s recent case law is illusory”. We reached that conclusion for the following reasons:

Although the Court has made several remarks suggesting that Article 12 is applicable to same-sex couples, it has done so in the context of having never upheld a complaint about a state’s refusal to grant access to or recognize same-sex marriage. Rather, the Court has continually reiterated its now established view that Article 12 cannot be construed as imposing an obligation on states to extend marriage to same-sex partners. In light of the Court’s general jurisprudence on marriage – which prohibits states from restricting or reducing any person’s ability to marry in such a way that impairs the very essence of the right or deprives a person or group of persons of the right to marry with the partners of their choice – we regard the Court’s remarks on the applicability of Article 12 to complaints about the prohibition of same-sex marriage as inconsistent and flawed. This is because, if Article 12 is applicable to same-sex couples, then it is illogical for the Court to conclude that prohibiting a same-sex couple from marrying – which amounts to an impairment of the very essence of the right to marry and a deprivation of the ability to choose one’s partner – does not amount to a violation of Article 12. On this basis, we conclude that, in practical and effective terms, Article 12 remains inapplicable to same-sex couples.



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