Same Same But Different: A heterosexual couple denied registered partnership by the ECtHR

By Claire Poppelwell-Scevak, FWO Research Fellow, Human Rights Centre (Ghent University)

On 26 October 2017 the European Court of Human Rights held in Ratzenböck and Seydl v Austria that Austria’s registered partnership law, which is only open to homosexual couples, did not violate the European Convention on Human Rights by denying this registered partnership to a heterosexual couple. The judgment given by the seven member – although there was a two judge dissenting opinion – bench can be seen as a warning to future same-sex marriage proponents that their claims will not be favourably assessed.

Facts

The applicants had been together in a heterosexual partnership for several years. They did not wish to get married as they felt it was not as light or ‘modern’ (§9) as a partnership. The couple also claimed that marriage placed additional burdens on them in terms of longer waiting times in the case of divorce and the ramifications of reporting when a spouse dies (§9). The couple argued that the Austrian government’s refusal to allow them to enter into a partnership was discriminatory under Article 14 of the ECHR when read with Article 8.

Judgment

The Court dismissed Austria’s claim that the couple were not victims in this case, as they found that the exclusion of the couple from Austria’s Registered Partners Act did indeed directly affect the applicants.

With the Court being satisfied that this case was admissible, it moved to discuss whether articles 14 and 8 ECHR had been violated.

This was the first time that the Court had ever been asked to look at the exclusion of a heterosexual couple from the recognition of a partnership (§33). The Court’s focus was to first look at whether the applicants’ situation was comparable to a same-sex couple. In principle, it wasn’t difficult to find that heterosexual couples have a general need for their relationship to be recognised, and thus, afforded legal protection, the same as a homosexual couple (§39).

However, the Court found that Austria’s registered partnership laws were only enacted to offer a formal legal recognition to same-sex couples as they did not have access to marriage. Therefore, this registered partnership was only put in place to give a same-sex couple ‘the possibility of obtaining a legal status or similar to marriage in many respects’ (§40). The fact that the applicants had access to marriage – which the Court saw as largely similar to a registered partnership – meant that their need for their relationship to be legally protected and recognised was satisfied.

Therefore, the Court could not find a violation of articles 14 and 8 as the applicants were not in a comparable situation to a same-sex couple. For article 14 to be violated, heterosexual couples and homosexual couples must have first started from a similar or comparable position. The Court found that this could not be as the applicants had the option to marry. For the Court, the only reason same-sex couples enter into a registered partnership is because they are excluded from being able to marry. As the applicants could get married, they had no need for a different form of legal recognition as they had one already available to them.

Judge Mits concurring opinion highlighted the majority’s sidestep of looking at the merits as they had found that there was no comparator between heterosexual and homosexual couples from the beginning. The Latvian Judge held that the majority’s current decision of skipping the merits could ‘convert a potentially challengeable ground of discrimination into one that is immune from judicial scrutiny’ (p.14). Interestingly, Judge Mits looked to whether there was a European consensus on this issue by looking at how many states in Vallianatos v Greece in 2013 (where Greece was found to have violated articles 8 and 14 as they had only allowed heterosexual couples to enter into a partnership) had registered partnerships available to homosexual and/or heterosexual couples. He concluded that because heterosexual couples can get married in all forty-seven states and can thereby have their relationship recognised – something which is not afforded to  homosexual couples – they are therefore not in a comparable situation to same-sex couples. However, as the situation with same-sex couples is changing, this too could be the case with heterosexual couples and so this positive obligation of allowing heterosexual couples the right to a partnership may be pushed onto states in the future.

Judge Mits concluded though, that as of now, regardless of any progress in this area, there is no indication that article 8 on its own could be stretched for heterosexual couples on this issue as they have the institution of marriage to protect their relationship.

The two judge dissenting opinion by Judges Tsotsoria and Grozev disagreed with the majority as they found that the applicants were in a comparable situation to homosexual couples and thus this difference of treatment needed to be justified. The fact that the government, according to Judges Tsotsoria and Grozev, provided no adequate justification for this justification meant that articles 8 and 14 were violated.

The Dissenters held that the majority’s decision failed to assess heterosexual and homosexual couples as social groups, and instead looked at them as created by the legislature of the domestic state. Further, they are confused how in Schalk and Kopf v Austria (2010) (reconfirmed by the majority in this case), it was seen that same-sex couples could be legitimately excluded from the right to marry, and no argument to look at whether a same-sex couple’s situation was different to a heterosexual couple was taken into account. The minority importantly take a stand against the Court’s usual justification that marriage is founded in history and tradition which is used to separate homosexual relationships from heterosexual ones. For the minority, treating heterosexual couples and homosexual couples differently will only continue to incur negative stereotyping in the future.

Comments

For a case that looks at a heterosexual applicant, the repercussions on homosexual couples still take centre stage, especially when one reads Judge Mits’ concurring opinion. The majority’s reasoning should raise alarm bells in the minds of same-sex marriage proponents and more generally, anybody concerned with the future protection against discrimination on the grounds of sexual orientation under article 14.

It is naturally disheartening to see the Court to have not found in favour of the applicants, but it is even more so confounding how the Court has cherry-picked its reasoning in this judgment. On the one hand, marriage is this unattainable relationship status for same-sex couples, one that the Court has gone to great lengths (see Hämäläinen v Finland, §96; Oliari and Others v Italy (2015), §191,193) to guard from homosexuals with its strict interpretation of article 12. On the other hand though, when a heterosexual couple wishes to have a different form of partnership recognition, marriage is suddenly on an almost equal footing with a partnership as it is only measured by the legal recognition – not the added cultural and social status – it offers a couple.

This is seen when the majority skipped the applicants’ view of the considerable differences between marriage to rest on only one difference that the applicants’ highlighted, which was that a registered partnership was more modern. The Court agreed with the State that the applicants had not specifically stated how marriage was different to a registered partnership (§41), even though the facts of the case clearly identify the differences that the applicants were faced with if only left with marriage (§9).

Additionally, Austria claimed that any discrepancy between marriage and partnership – period of separation and reporting of the death of a spouse – did not directly affect the applicants. Thus, the applicants could not effectively argue a difference in treatment as their current status if married would be the same as if they had entered into a registered partnership. Austria contended that the applicants’ claim is too abstract and hypothetical as they are not affected by these legal differences as of right now. However, if the applicants were to marry and then wish to divorce, then the first legal difference would affect them. Further, if they remained married, when one of them died, then the surviving spouse would also experience the effect of the second legal difference. It is therefore inevitable that this couple would be affected one way or another. The Court’s sidestep of this issue adds to their conflating rhetoric on this issue.

It is important to highlight Judge Mits concurring opinion as he does try and make sure that there is some kind of merits analysis in this judgment. In doing so, he looks to the European consensus. However, any attempt at a merits based argument is lost as he applies the consensus approach only to whether the positions of heterosexual and homosexual couples are still comparable rather than looking at the issue of whether this difference in treatment is justified (p.14-5). Judge Mits misses the opportunity to look into the merits of Austria’s actions by continuing to be stuck on the first hurdle of comparators. Judge Mits’ expansion of the majority’s argument could be seen as further conflating the matter as for him, the comparability between heterosexual and homosexual couples is something that could change with the European consensus, whereas for the majority the lack of similar grounds is based on the ideals that the applicants’ need for legal recognition is satisfied with marriage and thus partnership need not apply.

Conclusions

It’s clear that the Court is trying to avoid any possibility of opening the floodgates for same-sex marriage. The Court’s differentiation between heterosexual and homosexual relationships acts as an implied impediment for future litigation in same-sex marriage. However,  in its efforts to prevent these gates from opening, it has unfortunately only fumbled in its reasoning – by misusing Schalk and Kopf – and thus continued to confuse this issue.

It is hard to understand why a heterosexual couple should be refused this right to recognition. It would not be an onerous obligation on the state to make this available to heterosexual couples, especially if the rights are – as defended by the state – largely the same as the rights afforded to married couples. Why not extend this right to heterosexual couples?