Forthcoming judgment on same-sex marriage in France - Chapin and Charpentier v France

This Thursday (9th June) the European Court of Human Rights will issue its judgment in Chapin and Charpentier v France, nine years after the application was submitted and seven years after the case was communicated. The case concerns Stéphane Chapin and Bertrand Charpentier (both French nationals) and their asserted right to be married.

The facts

In May 2004, Mr Chapin and Mr Charpentier submitted a marriage application to the civil registry department of Bègles municipal council. The municipal civil registrar published the banns of marriage. The public prosecutor at the Bordeaux tribunal de grande instance served notice of his objection to the marriage on the Bègles municipal civil registrar and on Mr Chapin and Mr Charpentier. Despite the objection, the mayor of Bègles performed the marriage ceremony and made an entry to that effect in the register of births, marriages and deaths. The 'maverick mayor' was subsequently suspended.

On 22 June 2004, the public prosecutor brought proceedings against Mr Chapin and Mr Charpentier in the Bordeaux tribunal de grande instance, seeking to have the marriage annulled. On 27 July 2004, the court annulled the applicants’ marriage and ordered its judgment to be recorded in the margin of their birth certificates and the marriage certificate. The Bordeaux Court of Appeal upheld the judgment. Mr Chapin and Mr Charpentier appealed on points of law to the Court of Cassation, which on 13 March 2007 dismissed their appeal. The mayor of Bègles vowed to 'continue his fight' and stated that, "I have no regrets. I subscribe to this cause and I will persist."

The applicants' complaints

Relying on Article 12 (right to marry) taken together with Article 14 (prohibition of discrimination) of the European Convention on Human Rights, Mr Chapin and Mr Charpentier submit that limiting marriage to opposite-sex couples amounts to a discriminatory infringement of the right to marry. 

Furthermore, relying on Article 8 (right to respect for private and family life) taken together with Article 14 of the Convention, they contend that they have been discriminated against on the basis of their sexual orientation.

Legal situation, then and now

At the time that Mr Chapin and Mr Charpentier originally had their marriage solemnised, civil partnership (pacte civil de solidarité) was available to same-sex couples. They obviously did not want to enter into this 'alternative' form of legal arrangement.

Since Mr Chapin and Mr Charpentier lodged their complaint with the Court, France has made marriage available to same-sex couples.

What will the judgment of the Court be?

Supporters of the right of same-sex couples to marry would obviously want the Court to issue the decisive judgment that depriving Mr Chapin and Mr Charpentier of the opportunity to be married solely on the grounds of their sex or sexual orientation impaired the essence of the right to marry guaranteed by Article 12 and, as such, amounted to a violation of that Article. Such a judgment, however, is almost unimaginable since the Court has consistently made clear that Article 12 does not place Contracting States under any obligation to make marriage available to same-sex couples. 

Therefore, the most likely outcomes on Thursday are that the Court:

1. Declares the Article 12 complaint to be 'manifestly ill-founded' in accordance with Article 35(3)(a) of the Convention and, therefore, deems it inadmissible (as it did in Oliari and Others v Italy). On that basis the Court could reach the same conclusion in respect of the Article 8 complaint because, if 'Article 12 does not impose an obligation on Contracting States to grant same-sex couples access to marriage, Article 14 taken in conjunction with Article 8, a provision of more general purpose and scope, cannot be interpreted as imposing such an obligation either' (Schalk and Kopf v Austria).

2. Declares one or both of the complaints under Articles 12/14 and Article 8/14 admissible and, ruling on the merits, reaches the judgment that there has been no violation of any aspect of the Convention in respect of denying the applicants access to marriage. There is a slim possibility that the Court could decide to deal with the fact that when the applicants' marriage was annulled a record was made on their birth certificates. The Court may decide that this raises an issue, in relation to the applicants' right to respect for private life, that warrants specific attention. 

3. Strikes the application from its list of cases, in accordance with Article 37(1)(b) of the Convention, on the ground that 'the matter has been resolved' because same-sex couples can now marry in France. This may seem the most likely option, since it allows the Court to say nothing on the issue of same-sex marriage. However, this option is not possible if a sufficient number of  judges reach the conclusion that, although the matter has been resolved for the applicants, they think it appropriate to 'continue the examination of the application [because] respect for human rights as defned in the Convention and the Protocols thereto [is] require[d]'.

Whatever the Court's judgment, it will make a meaningful, and perhaps significant, contribution to the Article 12 jurisprudence on same-sex marriage. 

As we wait for the judgment...

...we might ruminate on the clear statement made by the Court in 2010 regarding Article 12:

The Convention institutions have accepted that limitations on the right to marry laid down in the national laws may comprise formal rules concerning such matters as publicity and the solemnisation of marriage. They may also include substantive provisions based on generally recognised considerations of public interest, in particular concerning capacity, consent, prohibited degrees of affinity or the prevention of bigamy. In the context of immigration laws and for justified reasons, the States may be entitled to prevent marriages of convenience, entered solely for the purpose of securing an immigration advantage. However, the relevant laws – which must also meet the standards of accessibility and clarity required by the Convention – may not otherwise 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).

In reflecting on this statement, we might ask how the Court could reach any conclusion other than that Mr Chapin and Mr Charpentier have suffered a violation of their Article 12 rights. 

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Update: see information about the Court's judgment here: http://echrso.blogspot.co.uk/2016/06/denying-same-sex-couple-access-to.html