Strasbourg Observers

Same-sex marriage case should go to the Grand Chamber: more on Schalk and Kopf v. Austria

July 01, 2010

Gay rights are one of the human rights issues of our time. The Strasbourg Court came out with an important but ultimately disappointing ruling on same-sex marriage last week (for a summary of the case, see Lourdes’ post). It is disappointing both for the reasoning and for the outcome (see below). Despite the fact that a case like this had clearly been coming for a long time, the Chamber’s ruling is sloppy and leaves much to be desired. Add this to the fact that the judges were divided by 4 to 3 on the issue whether Austrian law was discriminatory and I think this case is ripe for the Grand Chamber.

The judgment is not all bad. The Court takes an important step in recognizing that same-sex relationships can fall under the category of “family life” (art. 8). One might interpret this ruling as a “hidden but hopeful” message that same-sex marriage laws will someday – when a sufficiently strong European consensus exists on this issue – be legally required by the Court.

Still, I am more somber regarding the instrumental value of this judgment (as it stands) in the struggle for gay equality; I think that the signal that the majority sends is too weak to provide much support for the gay movement. My main concern is the lack of a finding of discrimination. Since 2003, since the case of L. and V. v. Austria, the Court has consistently applied strict scrutiny when differences were made on the basis of sexual orientation. Accordingly, a steady stream of case law has granted gays more and more human rights protection. In this case the Court departs from the case law of the past years in finding that the applicants were not victims of discrimination.

Where is the strict scrutiny in this case? In the first place it is remarkable that the Court does not make an analysis of article 12 in conjunction with article 14. If they had done so they would have had to apply the “very weighty reasons’-test to the decision of the Austrian government to exclude same-sex couples from the institution of marriage and I am not able to discern such a reason, yet.

In the second part of the Court’s analysis, concerning article 8 in conjunction with article 14, the Court does mention the strict scrutiny test. In paragraph 97 the Court notes “differences based on sexual orientation require particularly serious reasons by way of justification”. But this seems to be more a form of lip service to established case law than anything else, as the Court subsequently goes on to refer to the states’ margin of appreciation, without even looking into the reasons of the government. The dissent by judges Rozakis, Spielmann and Jebens does a brilliant job of pointing out these inconsistencies and of trying to disentangle the murky use of the margin of appreciation.

I realize that the Court can ill afford to be too far ahead of the majority of the states of the Council of Europe.  The Court should be a catalyst rather than a creator; its role should be to speed up the process of gay equality. The Court should have found that the applicants were discriminated against, like the dissenters claim. I would like to say to the Grand Chamber, to use a metaphor that seems apt at the moment: the ball is in your court.

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