Judges Spano and Bianku on same-sex couples, marriage, and family life

In the recently issued judgment of the European Court of Human Rights in Taddeucci and McCall v Italy - in which the Court held that excluding a same-sex couple, who were unable to marry, from a benefit available to married couples was a violation of Article 14 taken in conjunction with Article 8 of the Convention - Judge Spano (Iceland), who was joined by Judge Bianku (Albania), made some very striking comments, in a concurring opinion, about same-sex couples, marriage and family life. Judge Spano said:

I will not express a view on the Court’s current case-law granting deference to the Member States in deciding whether to legalise same-sex marriage. As things stand, that is the position of the Court, one by which I am bound on the basis of the principle of stare decisis. However, as recognised in Schalk and Kopf v. Austria (no. 30141/04, § 105, ECHR 2010), things may change [...] I am writing separately to highlight the fact that although States are not under an obligation to afford same-sex couples access to the institution of marriage, that does not mean that these individuals are unable to find sanctuary in this Court when invoking the right to respect for their family lives in particular contexts. On the contrary, if States decide to exclude same-sex couples from being able to marry, such a decision may have consequences when this Court is called upon to examine a claim of unjustified discrimination within a specific context that falls within the ambit of the right to respect for family life under Article 8 taken in conjunction with Article 14 of the Convention.

The significance of these comments will be obvious to anyone who follows the Court's jurisprudence on same-sex couples, marriage and family life. They are made in the context of the Court having consistently maintained that the right to marry enshrined in Article 12 of the Convention 'refers to the traditional marriage between persons of opposite biological sex' (Rees v the United Kingdom [1986], reiterated by the Grand Chamber in Hämäläinen v Finland [2014]) and that this places no obligation on Contracting States to grant same-sex couples access to marriage (see, most recently, Chapin and Charpentier v France [2016]). It also, in my view, remains unclear whether and in what circumstances Article 12 is applicable to same-sex couples. Moreover, there is the general context of the Court (and the former Commission) having for decades promulgated the view that same-sex couples enjoy no protection for their "family lives" under Article 8 of the Convention - a view that was finally changed in 2010 (Schalk and Kopf v Austria [2010]).

Understood within the history of Convention jurisprudence, the comments made by Judges Spano and Bianku appear to me to be incredibly important. It may be wishful thinking, but I read the comments in the following way:

I will not express a view on the Court’s current case-law granting deference to the Member States in deciding whether to legalise same-sex marriage [I am now going to express my view on the Court's current case law and its deference to States that do not wish to legalise same-sex marriage] 

As things stand, that is the position of the Court, one by which I am bound on the basis of the principle of stare decisis [I disagree with the current position of the Court, but, unfortunately, precedent dictates that I must be bound to the collective decision-making of my colleagues].  

However, as recognised in Schalk and Kopf v. Austria ... things may change [Things, however, are going to change, and at some point in the future, the Court will declare that Article 12 of the Convention requires States to permit same-sex couples to marry].  

I am writing separately to highlight the fact that although States are not under an obligation to afford same-sex couples access to the institution of marriage, that does not mean that these individuals are unable to find sanctuary in this Court when invoking the right to respect for their family lives in particular contexts [I am writing to make it absolutely clear that, regardless of whether States decide to allow same-sex couples to marry, same-sex couples can find sanctuary - and I use that word deliberately to mean refuge from persecution and danger - in the European Court of Human Rights when States do not respect their right to respect for their family lives].  

On the contrary, if States decide to exclude same-sex couples from being able to marry, such a decision may have consequences when this Court is called upon to examine a claim of unjustified discrimination within a specific context that falls within the ambit of the right to respect for family life under Article 8 taken in conjunction with Article 14 of the Convention [If States continue to exclude same-sex couples from marriage, and grant special privileges to married opposite-sex couples, this Court is now ready to more effectively use provisions in the Convention to address this unjustified discrimination].

Wishful thinking? Perhaps, but not outlandishly so.

Many thanks, Judges Spano and Bianku!