European Court of Human Rights hears case on same-sex “marriage”

Posted on | February 19, 2014 by J.C. von Krempach, J.D. |

From a once respected judicial authority, the European Court of Human Rights is increasingly turning into a spearhead of a cultural revolution that has nothing to do, but indeed contradicts and undermines, the values enshrined in the 1950 European Human Rights Convention. This sad development is illustrated inter alia by the way in which this Court selects the cases that it accepts to hear: while a vast majority of complaints, many among which relate to real human rights abuses, are dismissed off-hand, the Court will handpick even the most absurdly frivolous complaints if they provide an occasion to promote novel “values” such as homosexuality or the killing of unborn children.

The latest in a long series of such cases is the case of Orlandi and Others v Italy in which six same-sex couples complain about their inability to have their “marriage” recognised in Italy. The six same-sex couples were all “married” abroad (in Canada, the United States, and the Netherlands) and complain about the refusal of the Italian domestic authorities to recognise their marriage. Italy does not provide any recognition of same-sex relationships, either by way of civil partnership or marriage.

All of the applicants complain that they are being discriminated against, in the enjoyment of their rights protected by the Convention, on the basis of their sexual orientation. They complain, specifically, about the authorities’ refusal to register their “marriage” contracted abroad and more generally about the impossibility of obtaining recognition of their relationship in Italy.

The Court has issued the following questions:

  • Was the interference with the applicants’ right to respect for their private and family life, namely the refusal to register their marriage contracted abroad, in accordance with the law and necessary in terms of Article 8 § 2 of the Convention?
  • Has there been a violation of the applicants’ right to respect for their private and family life contrary to Article 8 of the Convention, in particular in so far as they had no other possibility to have their relationship recognised by law?
  • In what specific ways are the applicants disadvantaged by the lack of any legal recognition of their relationship?
  • Have the applicants suffered discrimination in the enjoyment of their Convention rights on the ground of their sexual orientation, contrary to Article 14 of the Convention read in conjunction with Article 8 and/or 12 of the Convention, in respect of their inability to (i) register their marriage and (ii) enter into any other type of civil union recognising their relationship in Italy?

The questions, which are the Court’s technique to frame the debate, are in and by themselves biased and misguided.

Article 8 of the European Human Rights Convention protects the right to privacy. But the applicants’ privacy is not what this case is about. On the contrary, by requesting their homosexual relationships to be recognised as “marriages”, the applicants are themselves bringing details of their private lives to the attention of the general public, seeking a public status for these relationships.

In other words: this case simply does not fall within the remits of Article 8. There is no interference with that right. The Court’s question whether the refusal to register their marriage contracted abroad, in accordance with the law and necessary in terms of Article 8 § 2 of the Convention is thus disingenuous: there is no need to justify the necessity of an interference with the right to privacy when in fact there is no such interference.

The one and only provision in the Convention that deals with marriage is Article 12. This Article says:

“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right”

As the ECtHR has itself pointed out in its decision in the case of Schalk and Kopf v. Austria, the wording of this provision leaves no doubt that according Art. 12 marriage is between a man and a woman.

This difference in treatment is easily justified. The fact that the Convention protects real marriages, but not homosexual “marriages”, is not due to a transient “zeitgeist” of the 1950s, nor is it discriminatory. The reason for protecting marriages is that society needs children in order to secure its continuation. These children should grow up in a stable and loving environment. That is the reason why the institution of marriage between a man and a woman is necessary.

By contrast, homosexual relationships are by nature sterile. There is no societal need for them. Therefore it is absolutely ok, and in no way discriminatory, for a State to not legally recognize them.

The protection of real marriages is therefore necessary in a democratic society. The legal recognition of homosexual relationships isn’t. That ‘s why a difference in treatment is not only justified, but indeed just.

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Turtle Bay and Beyond is a blog covering international law, policy and institutions. Our experts - at the UN, European Institutions, and elsewhere - explore an authentic understanding of international law, sovereignty, and the dignity of the human person. We expose those who would seek to impose a radical social vision that is contrary to these principles.

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