By Tobias Thienel
Last Thursday, the European Court of Human Rights heard oral argument in the case of Schalk and Kopf v Austria. In this rather prominent case, the Court is asked to decide whether – and that – the Convention guarantees a right for same-sex couples to enter into marriage. Note that this is marriage in the full traditional sense, stricto sensu, not any form of civil partnership offering a lesser extent of rights.
The applicants, Mr Horst Michael Schalk and Mr Johann Franz Kopf, brought their case at a time when Austrian law offered no possibility for them to formalise their relationship. That has changed as of 1 January this year, since when they can register a form of civil partnership, much like in many other European states. But that is not what they want.
Whatever may be the politics of this issue in Austria (and they are likely not to reach the heights of absurdity scaled by some opponents of gay marriage in the United States), there certainly are a few constructive difficulties with the applicants’ argument under the Convention.
The most obvious source of the right of gay marriage would clearly be the right to marry, as laid down in Article 12. But the first problem appears already from the wording of the article. Article 12 reads:
Men and women of marriageable age shall have the right to marry and to found a family, according to the national laws governing the exercise of this right.
The obvious difficulty is with the phrase "men and women." This is most readily understood as saying that men and women have the right to marry one another, to the apparent exclusion of men and men and women and women. It is unlikely to mean that every man and every woman, each for themselves, shall have the right to marry whoever they want, including another man or another woman. On that reading, "men and women" would simply mean "everyone." But on such a reading, all Convention rights would be expected to say "Men and women shall have the right to liberty" etc.; they don’t. Moreover, the phrase "men and women" cannot simply mean "adults", because Article 12 goes on to say "of marriageable age", which covers that ground.
In addition, there is some authority to confirm this understanding of the wording of Article 12. The Court has held quite bluntly that
the right to marry guaranteed by Article 12, refers to the traditional marriage between persons of opposite biological sex.
(Rees v United Kingdom, para 49; Sheffield and Horsham v United Kingdom, para 66; see also Cossey v United Kingdom, paras 43, 46; I v United Kingdom (GC), para 78; Jaremowicz v Poland, para 48 (‘right of a man and a woman to marry’))
The historical analysis of the original intent behind Article 12 doesn’t help. The Convention was signed on 4 November 1950 and entered into force on 3 September 1953. It is an understatement to say that the drafters of the Convention did not intend to create a right of gay marriage. However, the European Court of Human Rights has rarely set great store by the original intent of the drafters. Rather, the Convention has always been interpreted as a ‘living instrument’, to be interpreted in the light of present-day conditions (Tyrer v United Kingdom, para 31). Of course, there has been a marked tendency to recognise same-sex relationships in law among European (and other) states in recent (and not so recent) years. That, quite rightly, is one of the foundations of the applicants’ argument.
The troublesome question there is whether the development in state practice can trump the implications from the wording of Article 12. The question to be resolved in Schalk and Kopf is, in other words, what are the limits of the ‘living instrument’ approach. On this matter, recent practice would seem to be against the applicants:
– In Bayatyan v Armenia, para 63, the question was whether Article 9, the freedom of religion, entailed a right of conscientious objection to national service in the armed forces. Recent practice in favour of such a right was utterly overwhelming; recognition of the right is even now a prerequisite to admission to the Council of Europe (although Turkey does not recognise it, and Armenia hasn’t done until quite recently). However, a clause in Article 4 implied that recognition of the right was optional under the Convention (this interpretation itself is not entirely beyond doubt, but vouchsafed by authority). Against that background, the Court declined to follow the ‘living instrument’ approach:
‘In the Court’s opinion, since this Article clearly left the choice of recognising conscientious objectors to each Contracting Party, the fact that the majority of the Contracting Parties have recognised this right cannot be relied upon to hold a Contracting Party which has not done so to be in violation of its Convention obligations. Consequently, as far as this particular issue is concerned, this factor cannot serve a useful purpose for the evolutive interpretation of the Convention.’
– In Quark Fishing Ltd v United Kingdom (dec), the issue for the Court was whether the Convention applied in a given British dependent territory. The UK had not made a declaration under Article 56, extending the Convention to the territory. However, the applicant company argued that since the UK had complete effective control of the territory, the Convention should apply under the more recent case-law pertaining to Article 1 of the Convention. The Court did not accept the argument. Importantly for present purposes, it explained:
The Court can only agree that the situation has changed considerably since the time that the Contracting Parties drafted the Convention […]. Interpretation, albeit a necessary tool to render the protection of Convention rights practical and effective, can only go so far. It cannot unwrite provisions contained in the Convention.
But there is some contrary authority, as well, even though it is not quite conclusive. In Öcalan v Turkey (GC), paras 163-165, the Grand Chamber at least entertained the argument that the permission of the death penalty in Article 2 (2) of the Convention had been modified by the practice of the Contracting States since 1950. The Court did not ultimately make this finding, but certainly showed some sympathy for the submission and the fairly strong tendency of the lower Chamber to accept it. Also, what stopped the Court from so holding was the possibility that states had chosen to address the issue of the death penalty through additional protocols and not through a silent change in the meaning of the Convention. That aspect is not present in Schalk and Kopf.
Even so, prospects are not good for the Court overruling (its case-law on) Article 12 based on the ‘living instrument’ approach.
It has, however, recently gone some of the way. The Court had previously held that Article 12 applied only to heterosexual unions because the ‘right to marry’ in the article was closely linked to the ‘right to found a family’ also contained in Article 12 (Rees v United Kingdom, para 49; Sheffield and Horsham v United Kingdom, para 66; see also Cossey v United Kingdom, paras 43, 46). The Court has resiled from this analysis in I v United Kingdom (GC), para 78, where it stated:
Reviewing the situation in 2002, the Court observes that Article 12 secures the fundamental right of a man and woman to marry and to found a family. The second aspect is not however a condition of the first and the inability of any couple to conceive or parent a child cannot be regarded as per se removing their right to enjoy the first limb of this provision.
It will be observed that the Court there still speaks of ‘the right of a man and a woman to marry’, but the Court also – rightly – accepts that ‘founding a family’ is not integral to marriage. (The Federal Constitutional Court of Germany has not been so perspicacious.) However, the broader import of the case does not help Messrs Schalk and Kopf: the Grand Chamber held that, in the light of present-day conditions, it violated Article 12 not to allow transsexuals to marry in their new gender. But to hold that a man-to-woman transsexual must be allowed to enter into a marriage as a woman is not the same as holding that marriage must be possible even if both parties are of the same sex in every conceivable way.
Things therefore don’t look good for the applicants under Article 12.
Their other argument is directed at Article 14 read with Article 8. These articles combine to prohibit discrimination in the broad area of a person’s private life, that is to say in the ambit of Article 8. On this point, the English High Court has found in a case very much on all fours with Schalk and Kopf that the ambit of Article 8 was not engaged:
I do not consider that the failure to recognise the status of the Petitioner and the first Respondent as being validly married amounts to any kind of intrusion upon their right to respect for their private life in the sense contemplated by the Convention. Neither has the personal or sexual autonomy of the Petitioner been invaded, nor has she been criminalised, threatened, or humiliated in anyway. So far as the matter is put on the basis of her family life, the Convention has yet to recognise a childless same-sex relationship as constituting family life. However, even if that were not so, the withholding of recognition of the relationship between the Petitioner and first Respondent does not impair the love, trust, mutual dependence and unconstrained social intercourse which are the essence of family life and the matter falls outside the ambit of Articles 8 and 14 combined.
(Wilkinson v Kitzinger  EWHC 2022 (Fam),  UKHRR 164, para 107, per Sir Mark Potter P)
I’m not sure this reasoning holds true; in particular, the refusal of marriage rights may well involve a degree of humiliation. These are, however, points to be considered. In particular, there is – for better or worse – some force in the conclusion that a same-sex relationship without children has not yet been considered as constituting a ‘family’ within the meaning of Article 8 (as discussed at some length in Wilkinson v Kitzinger, paras 70 et seq).
Moreover, Article 8 may not be a good vehicle for overcoming the limitations inherent in Article 12. As the Court has said in Johnston v Ireland, para 57, about an argument deriving a right of divorce from Article 8:
It is true that, on this question, Article 8, with its reference to the somewhat vague notion of "respect" for family life, might appear to lend itself more readily to an evolutive interpretation than does Article 12. Nevertheless, the Convention must be read as a whole and the Court does not consider that a right to divorce, which it has found to be excluded from Article 12 (see paragraph 54 above), can, with consistency, be derived from Article 8 a provision of more general purpose and scope.
The same argument may perhaps apply where it is attempted to derive from Article 14 read with Article 8 a right of gay marriage.
On that basis, a better avenue may be Article 14 read with Article 12 (the applicants and the interveners – the latter represented by the noted expert Prof Robert Wintemute – have not raised this point). But it is not an easy argument to say that gay marriage is within the ambit of Article 12. However, even if it is not within Article 12 taken alone, that is not decisive on the ‘ambit’ point. Consider, for example, that the ‘normal civic obligations’ specifically excluded from the protection of Article 4 (2) by Article 4 (3) of the Convention nevertheless are within the ambit of the article (Karlheinz Schmidt v Germany, paras 22-23). If that is because Article 4 (3) makes express reference to those obligations, that may not apply to the Article 12 argument; Article 12 does not specifically exclude gay marriage, it only may not extend to it. But if the ‘normal civic obligations’ are simply sufficiently close to the issue of forced labour addressed by Article 4, that may be a good pointer to the width of the term ‘ambit’ under Article 14. Quite simply, any concept of ‘marriage’ may be within the ambit of the right to ‘marry’.
There is also an argument to say that since Austria establishes a form of civil partnership for gay couples, it has thus brought those partnerships into the ambit of Article 12. That is what the English High Court has decided in Wilkinson v Kitzinger (above):
[I]t seems to me that a differently focused approach to the question of ambit is appropriate in relation to Article 12 than Article 8. In this connection it seems to me that the question is whether one treats the core value(s) of Article 12 as being concerned only with restrictions placed on the right of opposite sex couples to marry, or more widely as concerning generally the limitations placed upon the rights of an individual to marry the partner of his/her choice. I propose to adopt that broader approach by treating the matter on the basis that, although Parliament had no positive obligation under the Convention to take steps to redress the perceived social disadvantages experienced by same-sex partners as compared with married persons, by embarking on legislation designed to alleviate such social disadvantage and passing the measures contained in the CPA which provided for recognition and treatment of a foreign marriage as a civil partnership only, brought the facts of the Petitioner’s situation within the ambit of Article 12.
That is in perfect accordance with the approach of the Grand Chamber in EB v France (GC), para 49:
The present case does not concern adoption by a couple or by the same-sex partner of a biological parent, but solely adoption by a single person. Whilst Article 8 of the Convention is silent as to this question, the Court notes that French legislation expressly grants single persons the right to apply for authorisation to adopt and establishes a procedure to that end. Accordingly, the Court considers that the facts of this case undoubtedly fall within the ambit of Article 8 of the Convention. Consequently, the State, which has gone beyond its obligations under Article 8 in creating such a right – a possibility open to it under Article 53 of the Convention – cannot, in the application of that right, take discriminatory measures within the meaning of Article 14.
Anyway, I find it quite plausible that the issue of gay marriage is within the ambit of Article 12. Article 14 therefore seems to apply. But what discriminations there are between the regime of civil partnerships and that of marriage in Austria, and whether they may be justified, I am in no position to say. I would just note that the English case already mentioned did not find a violation of Article 14 read with Article 12. Rather, the Judge said:
If marriage, is by longstanding definition and acceptance, a formal relationship between a man and a woman, primarily (though not exclusively) with the aim of producing and rearing children as I have described it, and if that is the institution contemplated and safeguarded by Article 12, then to accord a same-sex relationship the title and status of marriage would be to fly in the face of the Convention as well as to fail to recognise physical reality.
(Wilkinson v Kitzinger, para 120)
The limitations of the right under Article 12 are thus used to justify a similarly restrictive attitude in domestic law. I doubt if this line of argument is really compatible with the same Judge’s attitude as to the ambit of Article 12, and with the attitude of the Grand Chamber in EB v France to Article 53 of the Convention. In both instances, the fact that domestic law was more generous than the Convention right as such (Article 12 in Wilkinson, Article 8 in EB) meant that the facts came within the ambit of the relevant article. Basically, if domestic law creates a right in the broad context of Article 8, even if that right is not demanded by Article 8 as such, it must grant the right without discrimination. Once Article 14 applies on this analysis, surely it cannot be an answer to the justification enquiry under the article to say that Article 12 / Article 8 does not demand that the disadvantaged group be given the rights at issue?
It may, however, be argued that Article 12 gives some credence to the idea that full gay marriage rights may be refused for the protection of the ‘traditional family’ (such protection being a legitimate aim under the Convention: cf. Karner v Austria, para 40). However, it is also to be noted that discrimination on the grounds of sexual orientation is very difficult to justify (see EB, para 91; Karner, para 37).
However the case will turn out, I think it will be of some interest not only for the fairly ‘hot’ issue presented to the Court, but also for the technical issues on the interpretation of the Convention that the Court may come to address. Indeed, I am surprised that this is not a Grand Chamber case. That fact alone may not bode well for the applicants, in that a ‘small’ Chamber will be less prepared to rewrite the case-law on Article 12. But, of course, the case may yet go to the Grand Chamber.