Marriage, Family, Discrimination & Contradiction: An Evaluation of the Legacy and Future of the European Court of Human Rights' Jurisprudence on LGBT Rights

2011 ◽  
Vol 12 (10) ◽  
pp. 1746-1763 ◽  
Author(s):  
Sarah Lucy Cooper
Keyword(s):  
Human Rights ◽  
Family Life ◽  
European Convention ◽  
Same Sex ◽  
Registration System ◽  
Same Sex Couples ◽  
European Court ◽  
Opposite Sex ◽  
Grand Chamber ◽  
The Right

The European Court of Human Rights (ECtHR) has been considering whether same-sex couples should have the rights to marry and to be recognized as a family under the European Convention of Human Rights (ECHR) for over thirty years. In the 1980s the European Commission of Human Rights (the Commission) and the ECtHR respectively rejected the notion that same-sex relationships constituted a “family life” under Article 8 of the ECHR, and that post-operative transgendered persons had the right to marry under Article 12. However, throughout the 1990s and the first decade of the new millennium, the ECtHR handed down a body of judgments that incrementally liberalized these rights (albeit not always smoothly) in favor of LGBT persons. This evolution culminated in part on 24 June 2010, when the ECtHR passed judgment inSchalk and Kopf v. Austria.In that case the First Section of the ECtHR made a number of major, but seemingly contradictory rulings. For the first time in its history, the ECtHR ruled that same-sex relationships expressly constitute a “family life” under Article 8, and that the right to marry under Article 12 was not confined to opposite-sex couples in “all circumstances.” However, the ECtHR simultaneously ruled that Member States are under no obligation to protect that “family life,” by providing same-sex couples with access to marriage under Article 12, or an alternative registration system under Articles 8 and 14. The Grand Chamber denied the applicants' subsequent request for a referral.

X and Others v. Austria (Eur. Ct. H.R.)

2014 ◽  
Vol 53 (4) ◽  
pp. 620-661 ◽  
Author(s):  
Kathleen A. Doty
Keyword(s):  
Human Rights ◽  
Same Sex ◽  
Same Sex Couples ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
Opposite Sex ◽  
Grand Chamber ◽  
The Right ◽  
First Time

The Grand Chamber of the European Court of Human Rights, in X and Others v. Austria, held by a majority of ten to seven that Austria violated Article 14 (prohibition on discrimination) taken in conjunction with Article 8 (right to respect for private and family life) of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) when it denied an unmarried same-sex couple the right to a second-parent adoption when second-parent adoptions are available to unmarried opposite-sex couples. This is the first time the European Court of Human Rights (the Court) has recognized a right to second-parent adoption by same-sex couples.

An Emerging Right to a “Gay” Family Life? The CaseOliari v. Italyin a Comparative Perspective

2016 ◽  
Vol 17 (3) ◽  
pp. 451-485 ◽  
Author(s):  
Sabrina Ragone ◽  
Valentina Volpe
Keyword(s):  
Human Rights ◽  
Family Life ◽  
European Convention ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Same Sex Couples ◽  
European Court ◽  
National Perspective ◽  
The Right

This Article analyses, through the lens of comparative law, theOliari and others v. Italyjudgment, which was issued by the European Court of Human Rights (ECtHR) in July 2015. TheOliaricase is important for being the first judgment in which the ECtHR established the granting of legal “recognition and protection” to same-sex couples as a positive obligation for the Member States of the Council of Europe on the basis of Article 8 of the European Convention on Human Rights. In order to understand the role of judicial bodies in the progressive protection of homosexual rights, this Article combines an analysis of European case law with the national perspective. As it concerns the supranational facet, the authors illustrateOliari's reasoning and situate the case in the jurisprudence of the ECtHR. Elements of both continuity and innovation emerge from the analysis, as well as a relevant dimension of judicial dialogue supporting the incremental recognition of gay rights in Europe. As it concerns the national facet, this specific case was initially dealt with at the domestic level and was the object of judgment 138/2010 by the Italian Constitutional Court. The judgment is critically put into perspective through the examination of the jurisprudence of other European Constitutional Courts (France, Portugal and Spain) that were called on to decide similar cases in the same period. Therefore, the Article offers a comparative analysis of theOliarijudgment clarifying its relevance and speculating on the potential value of this case for the future recognition of the right to a “gay” family life in Europe.

The European Court of Human Rights: Nada v. Switzerland

2013 ◽  
Vol 52 (1) ◽  
pp. 268-322 ◽  
Author(s):  
Miša Zgonec-Rožej
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Security Council ◽  
Family Life ◽  
United Nations Security Council ◽  
European Convention ◽  
European Court ◽  
Grand Chamber ◽  
Effective Remedy ◽  
The Right

On September 12, 2012, the Grand Chamber of the European Court of Human Rights (the Court) ruled in Nada v. Switzerland that the implementation by Switzerland of the United Nations Security Council Al-Qaida Sanctions Regime violated the right to private and family life under Article 8, and the right to an effective remedy under Article 13 of the European Convention on Human Rights (ECHR).

The Right to Family Life in the Case Law of the European Court of Human Rights

2021 ◽  
Author(s):  
Petra Kotková ◽  
Milan Palásek
Keyword(s):  
Human Rights ◽  
Family Life ◽  
Case Law ◽  
Same Sex ◽  
Same Sex Couples ◽  
European Court ◽  
The Right ◽  
Relationship Of

The paper deals with the case law of the European Court of Human Rights relating to cohabitation and other law aspects with this institute related. Attention will be focused particularly to clarification of cohabitation in relationship of marriage or relationship of same-sex couples, especially in connection with Art. 8 and 14 of the Convention.

‘Marry in Haste …’: The (Partial) Abolition of Same-sex Marriage in Bermuda

2020 ◽  
Vol 20 (1) ◽  
pp. 153-188
Author(s):  
Nicola Barker
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
European Convention ◽  
Same Sex ◽  
Same Sex Marriage ◽  
Same Sex Couples ◽  
European Court ◽  
Legal Context ◽  
The Right ◽  
Court Of Appeal

Abstract In 2018, the British Overseas Territory of Bermuda revoked the right to marry for same-sex couples. In a judgment that reconceives the relationship between sexual orientation and religious freedoms, the Bermuda Supreme Court and Court of Appeal found this revocation to be unconstitutional. I explore the political and legal context in which same-sex marriage was granted and then revoked in Bermuda. I also consider the Bermuda Courts’ judgments in light of the subsequent judgment of the United Kingdom’s Supreme Court in Steinfeld, among others. While there was an assumption from both the Bermuda and United Kingdom Governments that the revocation provision was compatible with the European Convention on Human Rights, I argue that this underestimates the significance of the distinction between declining to recognise a right to same-sex marriage and revoking a right that has already been exercised. While the European Court of Human Rights has not yet found the absence of same-sex marriage to be a violation of Article 12 of the Convention, I argue that the revocation of a right to marry between same-sex couples that had been recognised in accordance with national law changes the terrain on which the Convention arguments would be made.

Constitutional Challenges to Sexual Orientation Discrimination

2000 ◽  
Vol 49 (4) ◽  
pp. 755-778
Author(s):  
Kenneth Mck. Norrie
Keyword(s):  
Human Rights ◽  
Sexual Orientation ◽  
European Convention ◽  
Orientation Discrimination ◽  
Same Sex ◽  
Same Sex Couples ◽  
Sexual Orientation Discrimination ◽  
European Court ◽  
House Of Lords ◽  
Opposite Sex

1999 may well go down in history as a watershed in the legal struggle for gay and lesbian equality. While in the late 1990s many legislatures across the world extended various statutory benefits to same-sex relationships,1 most legal systems continue to make a clear statutory distinction between same-sex and opposite-sex couples (usually by ignoring the former completely), as well as the more obvious (and deliberate) distinction between married and unmarried couples. Both distinctions have come under increasing challenge and in 1999 decisions from each of the highest courts in Canada, South Africa and Vermont, U.S.A. held legislation to be unconstitutional which treated same-sex couples differently from opposite-sex couples. In that year too, the British House of Lords held that a same-sex couple could be a “family” for certain statutory purposes,2 and the European Court of Human Rights for the first time accepted that the prohibition of discrimination contained in Article 14 of the European Convention on Human Rights covered sexual orientation discrimination.3

Case of Vallianatos and Others v. Greece

2015 ◽  
pp. 101-112
Author(s):  
Despina Kiltidou
Keyword(s):  
Human Rights ◽  
Private Life ◽  
European Convention ◽  
Same Sex ◽  
Civil Unions ◽  
Same Sex Couples ◽  
European Court ◽  
Flexible Form ◽  
Opposite Sex

The case of Vallianatos and Others v. Greece concerns whether or not the “non-marital partnership,” designed solely for opposite-sex couples according to Greek law no. 3719/2008, should be extended to same-sex couples. According to the judgment of the European Court of Human Rights, the Greek Law violates rights protected under Article 14 (unjustified discrimination) taken in conjunction with Article 8 (right to private life) of the European Convention on Human Rights (ECHR). As the Court's judgment underlined, the Greek law should be extended to same-sex couples as long as “civil unions” are not an alternative or flexible form of marriage. This chapter explores the case.

Reversibility, Proportionality, and Conflicting Rights

2017 ◽  
Author(s):  
Ian Leigh
Keyword(s):  
Human Rights ◽  
Family Life ◽  
Critical Analysis ◽  
Ad Hoc ◽  
European Convention ◽  
European Court ◽  
Grand Chamber ◽  
The Right

This chapter develops a test (the ‘reversibility test’) for resolving clashing rights cases where limitations of Convention rights for the protection of the ‘rights and freedoms of others’ are at stake. It demonstrates how the reversibility test operates in the context of the conflict between religious autonomy and the right to respect for private and family life under Articles 9 and 8 of the European Convention on Human Rights and why it is preferable to either definitional or ad hoc balancing between these rights. A critical analysis of the European Court of Human Rights’ Grand Chamber decision in Fernández Martinez v. Spain substantiates the utility and strengths of the test and shows how it vindicates the reasoning in the Court’s minority judgment.

Family Matters: European Court of Human Rights Finds German Parenting Rights Decisions to be in Violation of Article 8 of the Convention

2002 ◽  
Vol 3 (4) ◽  
Author(s):  
Cristina Hoss
Keyword(s):  
Human Rights ◽  
Family Life ◽  
European Convention ◽  
Fourth Section ◽  
Natural Family ◽  
Parents And Children ◽  
European Court ◽  
The Right

The fourth section of the, European Court of Human Rights (ECHR) in Strasbourg, in a judgment from 26 February 2002, held that the German authorities, in a case involving the revocation of parenting rights, violated Article 8 of the European Convention on Human Rights. The circumstances of the case are compelling: the painful separation of parents and children ordered by the German authorities in the interests of the children, followed by several years of hard-fought litigation as the parents struggled to reestablish their parenting rights over their children and to restore their natural family. The Court concluded that the interference in the right of private and family life was not proportionate to the legitimate aim pursued by the German authorities.

2. The Formation and Recognition of Adult Relationships:

2016 ◽  
Author(s):  
Ruth Gaffney-Rhys
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Same Sex ◽  
Forced Marriage ◽  
Same Sex Marriage ◽  
Adult Relationships ◽  
Questions And Answers ◽  
Opposite Sex ◽  
The Difference ◽  
The Right

The Concentrate Questions and Answers series offers the best preparation for tackling exam and assignment questions. Each book includes key debates, typical questions, diagram answer plans, suggested answers, author commentary and tips to gain extra marks. This chapter considers the formation and recognition of adult relationships i.e. marriage, same-sex marriage, civil partnerships and cohabitation. The questions included in this chapter cover: the right to marry contained in article 12 of the European Convention on Human Rights; forced marriage; the difference between opposite-sex marriage, same-sex marriage and civil partnerships and the difference between marriage and cohabitation.

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