Same-sex marriage in US and European Court of Human Rights case law: A comparison

Abstract

Developments in human rights have led to the legal recognition of the right to marry as a fundamental right. However, recent social changes have caused reconsideration of just what that means. The traditional right entitles opposite sex couples to get married; this is now criticized using innovative legal analysis. Supporters of this new analysis claim that the right to marry shall be reconsidered to extend this right to same-sex couples. By way of comparison of legal reasoning of two courts, this paper tries to answer a question on potential changes in the case law of the European Court of Human Rights (ECtHR), based on the recent case law developments of the Supreme Court of the United States and ECtHR. 

In particular, the paper analyzes two critical cases. In the US, the landmark case is Obergefell et al. v. Hodges Director, Ohio Department of Health, 2015 where the US Supreme Court delivered a majority opinion establishing a rule for public authorities in different states to issue marriage licenses and certificates to the same-sex couple applicants. It was accompanied by strong dissenting opinions. This ruling leaded to controversy in states which do not recognize the marriage equality.

In the ECtHR case law, the point of interest is Schalk and Kopf v. Austria, 2010 where the Court hesitated to recognize the right to same-sex marriage. Comparing the legal reasoning of these two courts applied in these cases, both describes the current status quo and highlights potential forthcoming changes in the position of the ECtHR.

Keywords

• Same-sex Marriages,Sexual Discrimination,ECtHR,Right to Marry,Marriage Equality

References

1. Baker v. Nelson 409 U.S. 810 (1972).
2. Bowers v. Hardwick, 478 U.S. 186 (1986).
3. Christine Goodwin v. the United Kingdom [GC] (European Court of Human Rights 2002).
4. Cossey v. the United Kingdom (European Court of Human Rights 1990).
5. Council of Europe. (1950). Convention for the Protection of Human Rights and Fundamental Freedoms
6. European Union. (2010). Charter of Fundamental Rights of the European Union. Official Journal of the European Union C83 (Vol. 53, p. 380). Brussels: European Union.
7. Factsheet of the ECtHR on Gender Identity Issues, May 2015.
8. Factsheet of the ECtHR on Homosexuality: Criminal Aspects, June 2014.

9. Factsheet of the ECtHR on Sexual Orientation Issues, July 2015.
10. James Obergefell, et al., Petitioners v. Richard Hodges, Director, Ohio Department of Health, et al.; Valeria Tanco, et al., Petitioners v. Bill Haslam, Governor of Tennessee, et al.; April DeBoer, et al., Petitioners v. Rick Snyder, Governor of Michigan, et al.; and Gregory Bourke, et al., Petitioners v. Steve Beshear, Governor of Kentucky 576 U.S. ___ (2015).
11. Lawrence v. Texas, 539 U.S. 558 (2003).
12. Maynard v. Hill, 125 U.S. 190 (1888).
13. Oliari and Others v. Italy (European Court of Human Rights 2015).
14. Rees v. the United Kingdom (European Court of Human Rights 1986).
15. Schalk and Kopf v. Austria (European Court of Human Rights 2010).
16. Sheffield and Horsham v. the United Kingdom (European Court of Human Rights 1998).
17. U.S. Constitution.
18. Zablocki v. Redhail, 434 U.S. 374, 384 (1978).