Same-sex couples’ rights when it comes to marriage can be best
advanced through equal enjoyment of citizenship status. Protections through
the concept of private life will be of limited effect in this context. Comparison
of the jurisprudence of the European Union (EU) and the European Convention
on Human Rights (ECHR) demonstrates the contrasting approaches to the
treatment of same-sex couples and highlights the preferable path. Both
systems have traditionally had restrictive roles in the legal protections offered
to gays and same-sex couples. Differences in treatment remain despite the
fact that the two systems have started to converge and offer more generous
protections. The European Court of Human Rights has led the way in the
protection of rights for gays and same-sex couples. The EU concept of
citizenship together with a closer interplay with the ECHR may offer the
greater support for those who favour same-sex marriage.
At the European level despite many links between the European Union (EU) and
the European Court of Human Rights (ECtHR),
there has been dual and differing
treatment of same-sex couples by these institutions. The treaties have different
purposes. The ECtHR is of course a specialist court in the area of human rights
and is recognised as a world leader in that area. Historically the EU concentrated
entirely on economic measures. More recently with the Citizenship Directive
2004/38 and other key legislation
there has been a focus on human rights.
The EU currently has 28 member states. All EU states are members of the European
Convention on Human Rights (ECHR) and the EU is committed to accede to the
In contrast the ECHR system has a much wider range in membership and
includes 47 countries of more divergent backgrounds.
The ECHR system does
not have the law-making functions assigned to the EU and therefore proceeds on a
This article will explore the divergence in approach which has grown between
the EU and the ECtHR in their treatment of gays and same-sex couples. The purpose
of this analysis is to offer the best positive way forward in this area and to stress the
need for greater interaction between these organisations. Three themes are explored
that illustrate the strategies used by the EU and ECtHR in attempting to eliminate
discrimination in this area. First, the treaties are constructed to achieve different
purposes and have used varying interpretative methods. The ECtHR has used an
incremental case-based approach driven by an evolutive and dynamic protection of
human rights, which has led to an expansion of the rights offered to gays and samesex couples.
This is limited by the margin of appreciation. Through legislative
expansion, the EU has developed a keener focus on human rightswhich has also
expanded the rights offered to gays and same-sex couples.
The EU has to operate
strictly within its competences and is also limited by the doctrine of subsidiarity.
Second, the European Court of Justice (ECJ) and ECtHR have taken different
approaches with reference to recognition of non-conformist types of “family life”.
While both were initially reluctant to recognise unconventional types of “family
life” traditionally, the ECtHR has been more receptive.
In Schalk and Kopf v
Austria, the ECtHR finally recognised co-habiting same-sex couples as having a
right to family life.
The ECJ remains influenced by a hierarchal structure of family
but it is the EU concept of citizenship which offers greater potential for
those who favour same-sex marriage.
Third, a contrast is drawn between the ECtHR emphasis on “private life” to
protect gays as compared with the EU concentration on citizenship which is a
concept very much on the public stage. The ECHR emphasis on private life has
limitations when it comes to asserting rights in public, such as marriage, which has a close connection with citizenship.
An understanding of the concept of citizenship
shows the potential for its further development regarding gays and same-sex couples.
Several authors emphasise the connection between citizenship and equality enacted
on a public stage,
which in turn leads to a strong symbolic and practical argument
for gays wishing to advance the cause of same-sex marriage. Equality arguments
are useful in making a successful case for same-sex marriage. This can be seen
by international courts in relying upon equality arguments to recognise same-sex
Authors have commented on the concepts of “sexual citizenship” and
the legal rights of same-sex couples to enter marriage forming a “constitutional
character in many jurisdictions”.
There is a connection between citizenship and
marriage with Angela Harris viewing this as a “right central to citizenship”.16
By granting EU nationals’ citizenship status this not only governs what type of
family member can move with an EU citizen when exercising the right of free
movement between states but also shows the potential to give extensive protections
to same-sex couples. Same-sex couples’ rights when it comes to marriage can be
best protected through equal enjoyment of citizenship status. Protecting same-sex
couples’ right to a private life will be of limited effect in this context.
Finally a positive conclusion will be drawn. Same-sex couples’ rights can best
be advanced by equal enjoyment of EU citizenship status. In this context, it is
essential that the EU works in combination with the ECHR. Currently, the ECHR
is limited by both the margin of appreciation doctrine and the emphasis on privacy.
As public opinion evolves, a consensus in favour of same-sex marriage across the
Europe may emerge
at which point it will be possible for the ECtHR to recognise
same-sex marriage. Furthermore, while the ECtHR has developed protections for same-sex couples under the ambit of private life,
recent cases have stressed
If Protocol 12 of ECHR, which is a free-standing equality
clause, were to be ratified by more contracting states,
this would also greatly
strengthen the position of the ECtHR. The EU concept of citizenship, combined
with the growing interplay with the ECtHR, means that the EU is in the strongest
position for those who favour same-sex rights.
The next section considers the dynamic case law-driven interpretative methods
developed by the ECtHR, coupled by the limiting factor of a continued emphasis on
the margin of appreciation.
This is contrasted to the legislation-driven approach of
the EU which historically concentrated on economic rights, although more recently
there has been a focus on human rights.
It is argued that it is the concept of EU
citizenship which could offer the best way forward for those gays supporting samesex marriage. The fact that both systems are now prepared to operate more closely
together is a positive development.