Some of YOU DO NOT have the right to marry - new paper on same-sex marriage and the ECHR

The Council of Europe often tells YOU - the people living across 47 European states - that YOU have the right to marry. But if YOU are a person wanting (longing, yearning) to marry a person of the same sex (who YOU love), then the European Court of Human Rights repeatedly tells YOU that YOU DO NOT have the right to marry.

Silvia Falcetta and I have written a new paper on the right to marry which is guaranteed by Article 12 of the European Convention on Human Rights. In the paper we provide an up-to-date account of how the European Court of Human Rights has adjudicated complaints brought under Article 12 by same-sex couples challenging their inability to marry.

To sum up the paper, we show that the Court's jurisprudence on same-sex marriage is inconsistent with its general jurisprudence on marriage and, therefore, fundamentally flawed. Our conclusion is that, despite some suggestion by the Court to the contrary, Article 12 remains, for all practical and effective purposes, inapplicable to same-sex couples.

It is nearly 30 years since Henry Schermers, a member of the former European Commission of Human Rights, advocated the extension of the protection of Article 12 to same-sex couples. Mr Schermers argued that:

the right to marry and to found a family [...] cannot be set aside in the public interest [...] The right to live in a family and – when of marriageable age – to found a family is of paramount importance for the individual. Denial of this right means condemnation to solitude and loneliness. There must be strong arguments to justify such a condemnation. In my opinion the fundamental human right underlying Article 12 should [...] be granted to homosexual and lesbian couples. They should not be denied the right to found a family without good reasons. (Dissenting opinion of Henry Schermers, W. v the United Kingdom, Commission decision, 7 March 1989)

In the three decades since Mr Schermers wrote these words, not one other member of the former Commission or the Court has echoed them.

We hope that this paper will contribute to critical and on-going debates about the Court's approach to same-sex marriage and encourage acceptance of Mr Schermer's view that the human right to marry should be extended to same-sex couples.

The paper can be downloaded here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3136642