February 02, 2018
By Claire Poppelwell-Scevak, PhD FWO Fellow, Gent University
From first glance, the decision of Orlandi and Others v Italy on 14 December 2017, may appear as a step in the direction of same-sex couples being afforded the protection of Article 12 ECHR – the right to marry. However, when one digs a little deeper into this case, there is only dismay that the Strasbourg Court has continued to reinforce its ‘same same but different’ interpretation of the Convention instead of being at the forefront of this struggle for equality.
In Orlandi, the applicants were six same-sex couples from Italy who had all been married abroad either in North America or Europe. The applicants had tried to register their legal overseas marriages upon return to Italy, however, their applications had all been rejected according to domestic law. Despite some mayors in Italy having allowed for a valid registration of these marriages, the domestic courts held that such registrations were null and void due to Italian law only recognising marriage between a man and a woman.
The applicants complained that their right to respect for their private and family life (article 8) as well as their right to marry (article 12) in conjunction with the prohibition of discrimination (article 14) were violated because they could not have access to the same rights as heterosexual married couples. This may sound familiar given the similarity this case has with Oliari and Others v Italy from 2015. However, Oliari was primarily concerned with the lack of any legal protection for same-sex couples in Italy, including civil unions. Here, the Court was faced with the inability to register a same-sex couple’s marriage in Italy when they were legally married in another country. So, the Court had to first decide whether Italy’s refusal to register the applicants’ marriages as marriages in Italy, violated the Convention. If not, then given the decision of Oliari, which found that Italy had an obligation to provide a legal protection for same-sex couples under article 8, were the applicants’ rights (prior to Oliari) left without any legal protection or recognition under Italian law?
The Court begins by re-stating its approval of both Schalk and Kopf v Austria (2010) as well as Chapin and Charpentier v France (2016) that the restriction of access to marriage lies within the member states’ authority under Article 12 or Articles 14 with 8 or with 12 ECHR. From an Article 8 perspective, however, the Court affirmed Oliari, by stating that there is a need for same-sex couples to be legally recognised and protected by a member state. For the Court, the applicants’ rights under the Convention would be fulfilled if they could register their overseas marriages as civil unions as this would provide the applicants ‘the opportunity to obtain a legal status equal or similar to marriage in many respects’ (para. 194).
As Italy had passed legislation in 2016, due to the judgment in Oliari, granting civil unions to same-sex couples, the Court limited the scope of this case to whether the applicants had been left in a ‘legal vacuum and devoid of any protection’ (para. 196) prior to 2016-17.
From this starting point, the majority held that regardless of the existence of a positive or negative obligation, the core issue was the balancing of competing interests between the applicants and the community (para. 198).
Looking first at Italy denying the applicants the ability to register their overseas marriages as marriage under Italian law, the majority examined the Italian Government’s claim that their actions were for public order. The Court found that such a reason is not provided for under Article 8, however, Italy’s measures were still seen to pursue a legitimate aim – prevention of disorder – as they were trying to prevent the applicants from circumventing domestic marriage legislation. When looking to the margin of appreciation, the Court gave a wide margin to Italy on the basis that this case raised sensitive moral issues and there was no European consensus in support of registering overseas same-sex marriages (para 205).
With the registration of overseas same-sex marriages now decided, the majority also looked to whether the applicants’ article 8 rights had been violated on the basis that they were operating in a legal vacuum up until 2016-7. At this point in the majority’s reasoning, the effects of the Oliari judgment began to show, as the majority also narrowed the margin due to the same thin – but clear – consensus on same-sex couples having their relationship recognised that was found in Oliari. Further, the Italian Government – just like in Oliari – had been unable to put forward any prevailing community interests to justify their actions. Without any community interests to tip the scales in favour of the State, combined with the obstacles the applicants faced in their daily life due to this lack of legal recognition and protection, the majority found that Italy had failed to strike a fair balance and had thus breached the applicants’ need for legal recognition.
With a clear violation of article 8, it was not necessary to look at article 14 with either articles 8 or 12.
Concurring Opinion of Judge Koskelo
Judge Koskelo held that this case found the same violation as was found in Oliari and that the majority had confused the point by discussing Italy’s inability to register the applicants’ overseas marriages. Judge Koskelo stated that Italy’s decision to not register the marriages was a result – not a cause – of an article 8 violation. Koskelo noted that whilst this case might not have a profound effect on Italy given the decision in Oliari, it was important for the Court to have provided a clear and coherent judgment – which in her opinion, they failed to do – so that other member states, who do not provide legal recognition for same-sex couples, had something to follow.
Dissenting Opinion of Judges Pejchal and Wojtyczek
The Judges in their dissenting opinion went through an extensive discussion of treaty interpretation and methodology. Judges Pejchal and Wojtyczek took it upon themselves to refer not only to the Convention’s Preamble but also to the UDHR and ICCPR (which arguably support a heteronormative view of marriage). The Polish and Czech natives reasoned why article 12 should not be used by the Court – even though the majority looked at article 8 – and argued that even if articles 8 or 12 could be applied in this case, neither could be violated as the margin must be – according to their interpretation of the ECHR – wide, in favour of the State.
From reading this judgment, including the dissenting opinion, it is not difficult to follow Judge Koskelo’s opinion given she gives a voice to what I can only assume the average human rights lawyer reading this judgment was thinking: why was this judgment so convoluted when it is simply an application of Oliari? We know from Oliari that the Court has confirmed the importance to legally recognise same-sex couples and that to not do so would violate their article 8.
From the perspective of marriage equality, the majority’s reasoning was, as Judge Koskelo so aptly described, ‘a line of argument which blurs rather than clarifies the analysis’ (para. 15, p. 52). However, unlike Judge Koskelo, I do not find that the majority need not have looked into the registration of marriages as an issue. I find that this should have been addressed as a separate issue, not one that was quickly dismissed on the basis of state authority and a lack of consensus. Naturally there is an argument that recognition of a relationship comes under article 8, however, I would argue that recognition of a marriage comes under article 12. Given the Court’s strict lex specialis application of article 12, it would have been beneficial to the same-sex marriage debate for this issue to have been discussed more in-depth.
Upon reading the dissenting opinion, I was dismayed that Judges Pejchal and Wojtyczek used international human rights instruments as well as the Convention itself to argue for the continual discrimination of same-sex couples on the basis of their legal interpretation. The two judges spend five pages arguing against same-sex marriage and how such an interpretation goes against the very meaning of article 12. As a lawyer, I follow their reasoning, and respectfully disagree, however, that is another blogpost in of itself. My issue is why they would spend five pages arguing against article 12 when that was never discussed (except in the admissibility of the complaint, note that the questions put to the applicants by the Court included articles 14 and 12) by the majority in the first place?
Further, this opinion states that ‘[A] growing number of heterosexual couples decide freely neither to marry nor to enter into a civil union and find their situation fully satisfactory. They assert their right to live their family lives outside any legal framework provided by legislation’ (para.10, p. 62). The heteronormativity of this statement is alarming. Heterosexual couples can decide whereas homosexual couples cannot. That is the point of this struggle for the LGB community. Of course there may be same-sex couples who do not wish to be part of the state in any shape or form. They may like to file separate tax returns, not have any security in terms of when their partner dies, be unable to share medical insurance or the ability to adopt the birth child of their partner. This is of course conceivable, however, these six couples who came before the Court did not have the option to decide whether they wanted to be excluded from Italy’s legal framework. They had no choice on the matter. It was made for them. It was because of their sexual orientation that the state was allowed to treat them this way, and it is this very issue that the judges in their dissenting opinion failed to appreciate.
Finally, for same-sex marriage proponents, I would urge caution when reading a possible run-off effect. The majority made it incredibly clear – unfortunately the clarity for the judgment was limited (para. 192) – to examine this issue under article 8. In my opinion, as supported by the seminal case on same-sex marriage, Schalk and Kopf, same-sex marriage will only be protected under article 12. The Court’s current reading is that it cannot force member states to legalise same-sex marriage, and that what same-sex couples really need to be protected by the Convention is only legal recognition and protection, not marriage. The Convention baseline for a gay couple is thus legal recognition not equality.