Letter to the Commissioner for Human Rights, Nils Muižnieks, about same-sex couples and the right to marry

In the paper that Silvia Falcetta and I recently completed on the right to marry guaranteed by Article 12 of the Convention, we reached the conclusion that “any applicability of Article 12 to same-sex couples suggested by the Court’s recent case law is illusory”. We reached that conclusion for the following reasons:

Although the Court has made several remarks suggesting that Article 12 is applicable to same-sex couples, it has done so in the context of having never upheld a complaint about a state’s refusal to grant access to or recognize same-sex marriage. Rather, the Court has continually reiterated its now established view that Article 12 cannot be construed as imposing an obligation on states to extend marriage to same-sex partners. In light of the Court’s general jurisprudence on marriage – which prohibits states from restricting or reducing any person’s ability to marry in such a way that impairs the very essence of the right or deprives a person or group of persons of the right to marry with the partners of their choice – we regard the Court’s remarks on the applicability of Article 12 to complaints about the prohibition of same-sex marriage as inconsistent and flawed. This is because, if Article 12 is applicable to same-sex couples, then it is illogical for the Court to conclude that prohibiting a same-sex couple from marrying – which amounts to an impairment of the very essence of the right to marry and a deprivation of the ability to choose one’s partner – does not amount to a violation of Article 12. On this basis, we conclude that, in practical and effective terms, Article 12 remains inapplicable to same-sex couples.

Following on from this we have written to the Commissioner for Human Rights of the Council of Europe, Nils Muižnieks, asking for his view on the apparent contradiction in the Court’s case law.