Critical consideration of the "disturbing" views of ECHR Judges Pejchal and Wojtyczek on same-sex relationships

Silvia Falcetta provides a consideration of the dissenting opinion of Judge Pejchal and Judge Wojtyczek in Orlandi and Others v Italy

The dissenting opinion of Judge Pejchal and Judge Wojtyczek in the case of Orlandi and Others v Italy has probably raised some eyebrows.

This case concerned six same-sex couples who complained that the refusal of the Italian authorities to register their marriages contracted abroad and the impossibility of obtaining legal recognition of their relationship in Italy violated their rights under Articles 8, 12 and 14 of the Convention. The Court delivered a multifaceted judgment, which is analyzed here, and it held – by five votes to two – that Italian authorities had violated Article 8.

Dissenting Judge Pejchal and Judge Wojtyczek argued that this case should have been declared ‘inadmissible as manifestly ill-founded’ and they upheld one of the most heteronormative (and, some might say, disturbing) interpretations of the Convention in the Court’s jurisprudence.

For instance, they suggested that the majority had committed ‘a fundamental methodological error’ in considering the facts of the application as falling within the notion of family life protected by Article 8. Likewise, when considering the possibility that the Court might evolve the interpretation of Article 12 in the future, they argued that ‘[g]ranting access to marriage within the meaning of Article 12 to same-sex couples is conceptually impossible’.

To corroborate their view that marriage must be defined exclusively as ‘the stable union of a man and a woman’ they quoted the Digest of Justinian and the Institutes of Justinian - a collection of juristic writings on Roman law compiled by order of the Eastern Roman emperor Justinian during the sixth century:
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. 
Judge Pejchal and Judge Wojtyczek therefore suggested that the ‘constitutive’ principles expressed in these compendiums should guide the Court’s interpretation of the right to marry enshrined in Article 12.

One might argue that using Roman law to assess the meaning of the Convention is completely ludicrous. Indeed, if the Court used the Digest and the Institutes to interpret the meaning of marriage as Judge Pejchal and Judge Wojtyczek suggest, then surely it would also need to consider whether the following principles are in accordance with the Convention:
  • As far as marriages are concerned, it is always necessary to consider not just what is lawful but also what is decent. 1. If the daughter, granddaughter, or great-granddaughter of a senator marries a freedman or someone who was an actor, or whose father or mother were actors, the marriage will be void. (Modestinus, The Digest of Justinian, 2.42.1, edited by A. Watson, University of Pennsylvania 2009).
  • A woman caught in adultery is in the same position as one convicted of a criminal offense. So if she is shown to be guilty of adultery, she will be branded with infamia not just because she was caught in adultery but also because she has been convicted of a crime. (Ulpian, The Digest of Justinian, 2.43.12).
  • A female slave manumitted for the purpose of marriage cannot get married to anyone other than the man who manumitted her unless he renounces his right as her patron to marry her. (Licinnius Rufinus, The Digest of Justinian, 2.51.1).