The Challenges of Saying ‘I do’ for same-sex couples: The Human Rights Centre submits a Third Party Intervention in transnational same-sex marriage case

By Claire Poppelwell-Scevak (PhD Researcher at the Human Rights Centre, Ghent University) and Sarah Den Haese (PhD Researcher at the Human Rights Centre, Ghent University)

The Human Rights Centre of Ghent University[1] (Belgium) recently submitted a third party intervention (TPI) before the European Court of Human Rights in the communicated case of Szypuła v. Poland and Urbanik and Alonso Rodriguez v. Poland. The issue is the restrictive marriage eligibility measures in Poland that prevent Polish nationals who are in a same-sex relationship from enjoying their right to marry abroad in countries which allow for same-sex marriage (in these two cases, Spain). In our submission, we argue that this case raises important issues under the right to marry (Article 12 ECHR), taken alone and in conjunction with the prohibition of discrimination (Article 14 ECHR), providing the Court with an important opportunity to clarify the scope of the right to marry, specifically in a transnational context, of same-sex couples. Further, we invite the Court to clarify the obligations weighing on both of the member states concerned. An overview of the facts as well as a summary regarding our main arguments are provided hereunder.

Facts

The application consists of two cases, the first concerned Mr Szypuła and his partner, and the second involved Mr Urbanik and his partner Mr Alonso Rodriguez. Both couples wished to marry in Spain, where same-sex marriage has been legal since 2005. However, if one of the prospective spouses is not a Spanish national, then it is a requirement under Spanish law that the couple submits a marriage eligibility certificate as proof that neither person is currently married. In Poland, this marriage eligibility certificate requires the name and gender of the intended partner. This requirement thus notifies the Polish authorities of the possibility that a same-sex marriage will be contracted abroad.

Mr Sypuła and his partner applied for this marriage eligibility certificate in October 2010 at the Warsaw Civil Status Office. They were denied this certificate and pursued this decision to the Supreme Court where their cassation appeal was rejected in 2014. Similarly, Mr Urbanik applied for this marriage eligibility certificate in July 2014 indicating that he intended to marry his partner in Spain. His request for this certificate was denied as the Warsaw Civil Status office stated that ‘it would be contrary to the Polish law according to which marriage could only be concluded between a man and a woman’. Mr Urbanik’s final domestic appeal was dismissed in October 2015.

Third Party Intervention Arguments

Our TPI focused on four distinct arguments, the first was the Court’s interpretation of Article 12 in the context of same-sex couples. The Court has acknowledged that Article 12 can ‘no longer […] in all circumstances be limited to marriage between two persons of the opposite sex’ (Schalk and Kopf v. Austria, para 61; Oliari and Others v. Italy, para 140). The issue has been, to date, for the Court that Article 12 cannot be interpreted so as to ‘impose an obligation’ on a Member State to allow for same-sex couples to marry (Schalk and Kopf, para 61-63). However, in this case, the issue was not that the couples had been barred from getting married in Spain. In fact, their right to marry had been granted by Spain when same-sex marriage was legalised in 2005. The problem was that the Polish Government were actively interfering with the applicants’ enjoyment of this right by not granting a marriage eligibility certificate to the couples on the basis of their sexual orientation. The central tenet of our Article 12 argument, therefore, rests on Poland being obliged under Article 12 to not hinder the effective enjoyment of its nationals of their right to marry in another country.

This argument is novel in the sense that Article 12 and same-sex marriage have always been discussed by the Court from the perspective that the impediment to Article 12 is based in the Member State where the same-sex couples wish to marry. However, the applicants’ situation provides a distinct difference as they have prima facie been granted this enjoyment of the right to marry by Spain, and it is Poland that is interfering with their enjoyment of the said right.

Our second argument turned to the issues raised under Article 12 in conjunction with Article 14. We argue that differential treatment based solely on the grounds of sexual orientation is unacceptable under the Convention (Salguiero da Silva Mouta v. Portugal). However, the wide margin granted to Member States under Article 12, has allowed for Member States to continue denying same-sex couples access to marriage. That being said, where ‘a difference in treatment is based on sexual orientation, the State’s margin of appreciation is narrow’ (Abdulaziz, Cabales and Balkandali v. the United Kingdom; Konstantin Markin v. Russia) and ‘differences based on sexual orientation require particularly serious reasons by way of justification or [….] particularly convincing and weighty reasons’ (X and Others v. Austria). Importantly, this case, once again, revolved around the discriminatory actions stemming from the Member State of nationality (Poland), not the Member State (Spain) which had granted the applicants access to marriage. In this sense, our submission highlights the difficulty in conceiving ‘weighty reasons’ that could justify a Member State hindering its nationals from contracting a marriage abroad.

Furthermore, we invite the Court to take into consideration the situation for LGBTQI+ people living in Poland and the harassment they experience in their day-to-day lives. This is a particularly crucial facet of our submission because the wide margin the Court has granted to Member States under Article 12 is based on the Court’s implicit presumption of good faith that Member States are reserving marriage for different-sex couples on the basis of Convention compliant grounds. For example, the Court’s finding in Schalk and Kopf, that the institution of marriage has ‘deep-rooted social and cultural connotations which may differ largely from one society to another’ allows for Member States to limit marriage to different-sex couples under the Convention.However, we argue that this presumption of good faith needs to be considerably restricted where there is evidence of large-scale exclusion and discrimination of a minority group, the likes of which can be clearly witnessed in Poland.

Lastly, our final argument focuses on the applicability of private international law rules. Contrary to what one might think, private international law is in essence national law and regulates the relationship between different (national) legal systems. The question whether a Polish national can marry his same-sex partner in Spain is thus governed by Spanish private international law rules. Moreover, private international law rules also determines the applicable law and stipulate if and how a marriage validly contracted abroad can be recognised. With regard to (same-sex) marriages, there are no international or supranational instruments dealing with the question of international jurisdiction, applicable law and/or recognition. As a result, each State has their own rules in place. However, national legislators (when drafting private international law rules) and administrative authorities and judges (when applying private international law rules) are bound by the rights and guarantees enshrined in the ECHR, the Charter of Fundamental Rights of the European Union and the Treaty on the Functioning of the European Union.

As stated above, Article 12 ECHR does not oblige Member States to legalise same-sex marriages. Currently, each Member State can freely determine whether or not it allows same-sex marriages. In our TPI, we argue that the right to reserve the institution of marriage for heterosexual couples does not entail the right to hinder its nationals from marrying (as a same-sex couple) abroad. By allowing Member States to prevent their nationals from contracting a marriage abroad, their national restrictions are given extraterritorial application. The Spanish requirement for non-nationals to present a marriage eligibility certificate places a State like Poland, which does not allow for same-sex marriage, in a position where it can circumvent both ECtHR and CJEU case-law by effectively preventing access to same-sex marriage in another country altogether. While the ECtHR has made clear that Member States are obliged to have a legal framework in place providing for the recognition and protection of same-sex unions (Oliari and Others v. Italy and Orlandi and Others v. Italy), the CJEU has ruled that the same-sex spouse of a mobile Union citizen must be granted a right of residence irrespective of whether national law allows same-sex marriages (Coman and Others).

To protect nationals from States prohibiting same-sex marriages, the national legislation of States allowing same-sex marriages can make use of the habitual residence as a connecting factor or can invoke the positive public policy exception when the applicable law is determined by the nationality of the prospective spouse. For example, in the Netherlands (Article 28 Book 10 Dutch Civil Code), Luxembourg (Article 171 Luxembourg Civil Code) and Sweden (Ch. 1 § 1 Act (1904:26 p. 1) on Certain International Relationships on Marriage and Guardianship), the civil status registrar will apply its own law (allowing same-sex marriage) even if the (one of the) prospective spouse(s) are/is not a national. The country of habitual residence is decisive. In Austria (Article 17 Austrian Code of PIL) and Belgium (Article 46 Belgian Code of PIL), on the other hand, nationality is the only connecting factor. This means that the civil status registrar will have to apply foreign law. However, if the designated law precludes same-sex marriage, the civil status registrar will apply his own law (allowing same-sex marriage) and thereby circumventing the prohibition on same-sex marriage.

Unfortunately, the use of habitual residence as a connecting factor or the presence of a positive public policy exception does not always guarantee the right to get married. Member States allowing same-sex marriage often also demand documentary evidence: a birth certificate, a certificate of legal capacity to marry, a certificate of marital status, etc. By requesting documents originating from Member States prohibiting same-sex marriage, the latter States can still prevent the formation of a same-sex marriage by simply refusing to issue the requested documents. As held above, we argued in our TPI that by refusing to issue these documents, Member States overstep their margin of appreciation. Although Member States have the right to prohibit same-sex marriage on their territory, they cannot prevent their nationals from making use of the right to get married in a country allowing same-sex marriage.

In addition, we criticise the unwillingness of the Spanish authorities to contract the marriage without the requested marriage eligibility certificate. Although the case has only been lodged against Poland, the refusal of Spain could also give rise to human rights violations. Bearing in mind the genesis and spirit of the EU Regulation 2016/1191 on promoting the free movement of citizens by simplifying the requirements for presenting certain public documents in the European Union, EU nationals should be protected against bureaucratic procedures. If a person’s personal information, nationality, marital status, etc. has already been established, there is no need to request more recent or a specific type of documents.


[1] For the Human Rights Centre the team consisted of Prof. Dr. Eva Brems, Sarah Den Haese, Dr. Laurens Lavrysen, Claire Poppelwell-Scevak, Anne-Katrin Speck, Prof. Dr. Jinske Verhellen, and Judith Vermeulen.

The CJEU’s judgment in Coman: a small step for the recognition of same-sex couples underlying European divides over LGBT rights

By Manon Beury, research assistant in Comparative Sexual Orientation Law, Leiden University

Following the eagerly-awaited judgment of the Court of Justice of the European Union (CJEU) in Coman and Others v. Romania, the Romanian Constitutional Court decided on 18 July 2018 that same-sex married couples have the right to reside in the country if one of the spouses is a Romanian citizen. The CJEU ruled on 5 June 2018 that the term “spouse”, for the purpose of granting a right of residence to non-EU citizens, includes same-sex spouses. The decision was hailed as a great victory for same sex couples. Yet, overjoyed celebrations may be rushed. If the Luxembourg Court did raise the bar on LGBT rights in Coman, the step forward regarding the recognition of same-sex marriage is a rather small one. At a point in time where certain Member States are introducing a constitutional ban on and others are legalising such marriages, the Court in Coman served as a forum for political battles that crystallise a clear divide within the EU. Continue reading

Oliari, Orlandi and Homophobic Dissenting Opinions: The Strasbourg Approach to the recognition of same-sex marriages

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. Continue reading