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European Court of Human Rights: There Is No Universal Right to Gay Marriage

The European Court of Human Rights, the Council of Europe’s international judicial body in France, will not force its 47 member states to legalize same-sex marriage across the board, denying an appeal from two men who claimed Austria violated their right to be free from discrimination. The one up-side? In its written ruling, the court declared nations cannot deny marriage rights to gays based on their inability to procreate.

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  • SM

    It kinda makes me with we’d extended membership of the EU more slowly, because I feel moves like this would come a lot faster if the EU was more Western Europe, and then once instated the countries would have to adopt certain regulations before accession.

  • robert

    @SM: Firstly the Council of Europe and the European Court of Human Rights are separate from the EU. They are based on a separate treaty called the European Convention on Human Rights that 47 countries agree to be bound by.

    Secondly, I don’t know why you’re talking about ‘Western Europe’ as this was a case against Austria which is very much in Western Europe.

    BTW the thing people need to remember is that the judgement isn’t ‘against’ gay marriage – it’s just that the Convention and its case-law don’t automatically imply gay marriage should be a right.

  • Sceth

    The gays, per the article, “could claim a right to family life like heterosexual couples.” A right to a kind of ‘life’ is ambiguous, but at least this solidly establishes, say, visitation rights in Europe, making it a ruling many Americans would greatly appreciate.

  • slobone

    But are European countries required to honor marriages performed in other countries? Anybody know?

  • M

    If western Europe is so liberal and gay friendly like many gays claim, how come most countries in Europe do not allow same sex marriage? In Germany, if a same sex couple gets married in the US, their marriage is simply a partnership. The gay community whines about same sex marriage in the US yet fails to realize that we have it soo much better than most of the world. Grass is greener on the other side I guess..

  • Fabio

    @slobone: No, they aren’t.

  • Fabio

    Only seven countries in Europe have same-sex marriage so far: the Netherlands,Belgium, Spain, Norway, Sweden, Portugal and Iceland. But almost all the countries in western Europe recognize gay couples in different forms (PACS, civil unions, registered partnership etc.). On the contrary, in Eastern Europe most countries don’t give any recognition to same-sex relationships.

  • robert

    @Fabio: UK has civil partnerships which are 98% identical to marriage.

    Of course if you’re going to get hung up on the name, that’s another matter. The rest of us prefer to enjoy the practical rights now and fight to change the name later.

  • Mike

    As Fabio has pointed out most western European nations either have marriage or its equivalent available to same sex couples with almost all of the legal & financial protections. Contrast that to the US where only a handful of states & DC provide that option & most importantly NO federal recognition due to DOMA. That means no benefits like Soc Security,pensions,tax incentives,etc. So actually Europeans do have it better on the whole.

  • Dan

    First off, the EU and the Council of Europe are two different institutions, so no one should confuse them as being the same thing. Many countries are part of the CoE that are not part of the EU.

    Second, the ECHR court ruled that the 1950 European Convention which created the European Court of Human Rights (part of the CoE) does not empower the court to find in favor of equality in the first place. The court was admitting that it does not actually have the power to enforce human rights because the instrument that created the court was discriminatory from the start (thus, the convention itself violates the Human Rights principle of non-discrimination and equality). It is great the justice admitted that their court system is systemically flawed because of how it was created. It also helps explain why so many governments in Europe ignore the court when it comes to basic human rights like freedom of peaceful assembly.

  • slobone

    @Fabio: In which case what they have isn’t really that different from DOMA…

  • thousandfold

    If we’re going to assume straight marriage is a right, rather than what it really is—a social contract legitimized and promoted by the government through various legal and economic incentives—on what basis can we deny it to gay people? I thought the whole point of rights was that they don’t differ from one society to another, so should definitely *not* be “assessed” by national authorities.

    This ruling is unsatisfactorily equivocal: either marriage is a right, and the reason they give for allowing local decisions about gay marriage is untenable, or marriage is not a right, and the reason they should give is something along the lines of “marriage is a locally defined contract, not a right, so the question of gay marriage should be answered locally.”

    Also, that bit about marriage not being able to be denied to gay couples on the basis of the fact that they can’t procreate just doesn’t seem to belong, given their conclusion that gay marriage is a local question. How can claim on the one hand that you can’t answer the question of the legality of banning or allowing gay marriage, but then state that such-and-such is not a permissible reason for banning gay marriage? It boggles the mind.
    Maybe I’m being cynical, but it looks like they’re just splitting the difference: maintaining the status quo, but also throwing the gays a bone.

  • Dan

    It is an important footnote in this case that the United Kingdom sided with Austria AGAINST equality for gay couples.

  • whatever

    @robert: “UK has civil partnerships which are 98% identical to marriage.”

    So does California.

    And can we finally stop pretending that Europe is a promised land of equality?

  • Bill Perdue

    @robert: Civil opartnerships are for second class citizens. Either we’re first class citizens and have the same rights as christers or we aren’t.

    The name is unimportant if everyone is treated equally – if every one gets CPs or everyone get marriages that’s equality. If not, it’s second class citizenship.

    @whatever: Try to keep up, whatever.

    CP’s don’t have the 1,138 benefits the United States government provides to legally married couples according to a report given to the Office of the General Counsel of the U.S. General Accounting Office. You can read the whole list at Watch out for eyestrain.

    European nations and the EU in general are more advanced than the backward US becasue we have backward anti-LGBT bigots like “gawd’s in the mix” Obama and a Congress of Democrat bigot panderers and Republican bigots.

    A Republican will call you a queer, faggot, dyke or tranny to your face and then sneer.

    A Democrat, on the other hand, will wait until you leave the room, sneer and then call you a queer, faggot, dyke or tranny to your face.

    Vote against the Democrats on Tuesday, November 2nd. Or just don’t vote.

    Vote against the Republicans on Tuesday, November 2nd. Or just don’t vote.

  • Robert in NYC

    No. 7, Fabio…Iceland is not an EU member yet, so its six EU member countries. It will be 7 next year when Finland legalizes marriage equality. Get rid of Sarkozy in France and Merkel in Germany and replace them with progressives, easily done, then you’ll see a domino effect in the rest of Western Europe making the EHCR ruling a farce.

    However, this judgement is extremely important to same-sex partners as for the first time ever, the Court stated same-sex partners are covered by ‘family life’ as referred in Article 8 of the European Convention of Human Rights. So far all cases, even the positive, for LGBT people were viewed under the ‘private life’, so this judgement is truly historical in this sense. Second important detail is that the Court made it clear that the Convention’s article on marriage should not always be interpreted as between man and woman. In longer term, this is very significant judgement for LGBT people in Europe.

    We don’t even have that in the U.S. Civil Partnerships, though well intended provide actually 99.9% of the rights of marriage throughout the UK and are portable within. The only area that needs to be tweaked are survivor pension rights in the event of a death, pensions that were in place prior to 1988 for those who were in long term relationships prior to the CP law of 2004. From what I know, that issue is being addressed and will probably be resolved once and for all. Compared to the U.S. where there is no federal recognition or rights accorded to same-sex marriages, British gay couples are doing a lot better under the current law, but ideally full civil marriage equality should be the norm. Its up to British gays to use the 61% support of the British public to have CPs recognised as marriages.

    We haven’t even passed ENDA, abolished DOMA while the UK and others have full equality in the delivery of goods and services as well as protection against employment and housing discrimination at the national level, as well as the right to adopt children. Also, foreign nationals who are partners of a Brit are allowed to reside in the UK with or without a CP and of course, UK gays are allowed to serve openly in the military. Not bad on balance, better than anything we have for now, comparatively.

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