European Court: Same-Sex Couples Have a Right to Legal Recognition

The European Court of Human Rights in Strasbourg, France.

Photo by JOHANNA LEGUERRE/AFP/Getty Images

In a landmark decision, the European Court of Human Rights, which hears human rights cases involving its 47 member countries, has ruled that the European Convention on Human Rights provides a right to the legal recognition of same-sex relationships.

In the case of Oliari and Others v. Italy, the judges ruled in favor of three same-sex couples who had brought the case against the Italian government, unanimously agreeing that Italy, in failing to make available “a specific legal framework providing for the recognition and protection of same-sex unions,” was in violation of Article 8 of the ECHR.

Article 8 of the Convention states that “everyone has the right to respect for his private and family life, his home, and his correspondence.” While Article 8 was written to protect people from “interference by a public authority” in the exercise of these rights, the court determined that it also put upon European governments “certain positive obligations to ensure effective respect for the rights protected by Article 8,” including “a legal framework” for same-sex couples to have their relationships “recognized and protected.”

In its judgment, the court noted that “same-sex couples are just as capable as different-sex couples of entering into stable, committed relationships” and that a majority of states party to the ECHR have already enacted legislation permitting same-sex couples to have their union recognized, either as a marriage, civil union, or registered partnerships. The rapid development of the move towards recognition of same-sex unions in the United States was also taken into account.

Same-sex couples in Italy currently have no satisfactory legal avenue to achieve recognition of their relationships, including civil unions or registered partnerships. Efforts by the Italian government led by Prime Minister Matteo Renzi to pass legislation recognizing same-sex civil partnerships in the past few months have stalled in the face of conservative opposition. The court’s finding should provide the necessary pressure to finally get this thing done and give gay and lesbian couples in Italy the status and dignity they require.

Importantly, what this ruling did not do was determine that there is a legal right to same-sex marriage, specifically. This issue had previously been brought to the ECtHR in 2010 in the case of Schalk and Kopf v. Austria, and it was ruled at that time that Article 12 of the ECHR—“men and women of marriageable age have the right to marry and to found a family”—did not extend to imposing on European states the demand to recognize marriage for same-sex couples.

The applicants in Oliari and Others v. Italy challenged Article 12 again, in conjunction with Article 14 that prohibits discrimination, arguing among other things that “to persist on denying certain rights to same-sex couples only continued to marginalize and stigmatize a minority group in favor of a majority with discriminatory tendencies.” The Court’s mind was not changed, however. The judges stated that while the wording of Article 12 does not limit marriage to one man and one woman, it also “does not impose an obligation on the respondent Government”—in this case, Italy—“to grant a same-sex couple access to marriage.”

Nevertheless, what we have here is a significant and stunning legal precedent, one that could be a game-changer for LGBTQ rights organizations and pressure groups across Europe. It could provide the basis for further legal challenges in other European countries that currently do not recognize same-sex relationships, like Poland, Romania, and Greece, and protect the implementation of existing laws in others.