Posted: 25 Feb 2021 02:16 PM PST – (c) Paul Johnson -http://echrso.blogspot.com/
This week, the Judicial Committee of the Privy Council held a two-day hearing in the case of Day and another (Appellants) v The Government of the Cayman Islands and another (Respondents). The case concerns whether the Bill of Rights in the Constitution of the Cayman Islands provides a right for same-sex couples to access the institution of marriage.
The European Convention on Human Rights extends to the Cayman Islands, a self-governing British Overseas Territory. As such, the right to marry contained in Article 12 of the Convention is in operation in the Cayman Islands and, inevitably, the hearing in Day turned on the extent to which same-sex couples can rely on the protection of Article 12 when their government prohibits them from marrying.
Article 12 of the Convention provides: “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.”
Article 12, same-sex couples and the European Court of Human Rights
Listening to the arguments presented in Day reminded me of something I have written about many times before: the inconsistent and flawed approach of the European Court of Human Rights in interpretating Article 12 of the Convention in respect of same-sex marriage.
That inconsistent and flawed approach began in 2010, in the case of Schalk and Kopf v Austria, when the Court considered a complaint by a same-sex couple about their inability to marry and reached the conclusion that “it cannot be said that Article 12 is inapplicable to the applicants’ complaint” (§ 61).
This conclusion, on the “applicability” of Article 12 to a complaint about the exclusion of same-sex couples from marriage, was based on the Court having regard to Article 9 of the Charter of Fundamental Rights of the European Union which, in providing a right to marry, does not contain the words “men and women” and leaves the decision whether or not to allow same-sex marriage to EU states.
It was in light of Article 9 of the EU Charter that the Court concluded that it “would no longer consider that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two persons of the opposite sex […] However, as matters stand, the question whether or not to allow same-sex marriage is left to regulation by the national law of the Contracting State” (§ 61).
This conclusion on the applicability of Article 12 was made in the context of the Court’s interpretation of Article 12 in respect of two other claims made by the applicants in Schalk.
The first of these claims was that the “wording of Article 12 did not necessarily have to be read in the sense that men and women only had the right to marry a person of the opposite sex” (§ 44). The Court rejected this textual argument, stating that in contrast to all of the other substantive Articles of the Convention, which grant rights and freedoms to “everyone” or state that “no one” is to be subjected to certain types of prohibited treatment, the inclusion of the words “men and women” in Article 12 must be regarded as deliberate and, moreover, understood to reflect the “traditional sense” of marriage as the “union between partners of different sex” (§ 55). As I argued in an article published in European Law Review, which was discussed in the Privy Council hearing this week, this historical understanding of Article 12 is patently untrue.
The other claim advanced by the applicants in Schalk was that “the institution of marriage had undergone considerable changes” and, consequently, “there was no longer any reason to refuse same-sex couples access to marriage” (§ 44). The Court dismissed the applicants’ argument that Article 12 should be interpreted “in the light of present-day conditions” on the grounds that “there is no European consensus regarding same-sex marriage” (§ 57-8). At the time of Schalk, 6 out of 47 Convention states allowed same-sex marriage, and this has now grown to 16 – a growth which the Court has not regarded as a basis on which to change its approach to interpreting Article 12.
For all of the reasons outlined above, the Court’s overall conclusion in Schalk was that Article 12 “does not impose an obligation […] to grant a same-sex couple […] access to marriage” (§ 63).
The mess of “applicability”
The remark made by the Court in Schalk on the “applicability” of Article 12 to same-sex couples has, in my view, created enormous confusion about the relevance of Article 12 to same-sex couples seeking access to marriage.
Such confusion can be seen, for example, in the responses by the domestic courts to complaints about the then-prohibition of same-sex marriage in Northern Ireland. When applying Article 12, the High Court rejected the complaints and concluded that “the Strasbourg Court does not recognise a ‘right’ to same sex marriage. That being the case, the current statutory provisions in Northern Ireland [prohibiting same-sex marriage] do not violate any rights. Those rights do not exist in any legal sense” (Close and Others, Re Judicial Review § 16). By contrast, the Court of Appeal reached the conclusion that the prohibition on marriage was in violation of the Convention, holding that “the absence of same-sex marriage in [Northern Ireland] discriminated against same-sex couples, that a fair balance between tradition and personal rights had not been struck and that therefore the discrimination [against same-sex couples] was not justified” (Close and Others, Re Judicial Review § 58).
In my view, such different conclusions arise from the confusion created by the Court in Schalk in simultaneously holding that Article 12 “applies” to same-sex couples but does not require a state to grant same-sex couples access to marriage. The Court has, since Schalk, maintained that Article 12 is “applicable to a same sex couple wishing to marry” and that Article 12 is not violated by a state operating a total ban on same-sex marriage (Orlandi and Others v Italy, § 145).
Given that the Court’s approach has led to significant uncertainty and confusion, and to radically different conclusions about the extent to which Article 12 protects same-sex couples seeking access to marriage (such as those in Northern Ireland), it would, in my opinion, be more appropriate for the Court to say that Article 12 remains “inapplicable” to same-sex couples. It would be more appropriate because, in my view, the way the Court interprets Article 12 means that it is practically and effectively inapplicable to same-sex couples seeking access to marriage. I think this for three key reasons.
The first reason that Article 12 is practically and effectively inapplicable to same-sex couples seeking access to marriage is that, in Schalk, the Court stated that its applicability arose solely because of the existence of Article 9 of the EU Charter. In this respect the Court concluded, as I outlined above, that because Article 9 of the EU Charter had omitted the words “men and women” from the right to marry that it would no longer consider that this right in Article 12 must in all circumstances be limited to marriage between two persons of the opposite-sex. The former President of the Court, Nicolas Bratza, has stated that Schalk established that “in the light of Article 9 of the [EU] Charter, it could not be ruled out […] that Article 12 of the Convention could apply to same-sex marriage if the latter was recognised in domestic law”. Therefore, the Court’s interpretation of the relevance of Article 9 of the EU Charter cannot be regarded as establishing that, in general terms, complaints relating to same-sex marriage will fall within the scope of Article 12. This is not least because for those individuals in states contracted to the Convention that are not members of the EU, Article 9 of the EU Charter has no relevance.
The second reason that Article 12 remains practically and effectively inapplicable to same-sex couples seeking access to marriage is based on the existence of eleven years of case law since Schalk. During this time the Court has failed to evolve its approach to applying Article 12 to complaints by same-sex couples seeking access to marriage. On the contrary, in Hämäläinen v Finland, the Grand Chamber took the opportunity to state that Article 12 “enshrines the traditional concept of marriage as being between a man and a woman” (§ 96). Moreover, in Oliari and Others v Italy, the Court declared complaints about the inability of same-sex couples to marry inadmissible as “manifestly ill-founded” (§ 194) – something which counsel for the Cayman Islands government made much of in this week’s hearing. Since the Convention is “intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective” (Cudak v Lithuania [GC] § 58) any applicability of Article 12 to same-sex couples seeking access to marriage is, I would argue, “illusory”.
The third reason Article 12 is practically and effectively inapplicable to same-sex couples is borne from contradictions between the Court’s general jurisprudence on the right to marry and its specific jurisprudence on same-sex marriage. For instance, in its general Article 12 jurisprudence the Court has established the standard that a state “may not […] deprive a person or a category of persons of full legal capacity of the right to marry with the partners of their choice” (O’Donoghue and Others v the United Kingdom § 83). If Article 12 is applicable to same-sex couples then a total prohibition of same-sex marriage by a state, which results in a category of persons being deprived of the right to marry the partners of their choice, cannot meet the Court’s own standard and must, therefore, amount to a violation of Article 12. Since the Court has consistently found no such violation, it is unsurprising that some judges in the Court have sought to justify the Court’s approach, arguing that Article 12 does not apply to “a same-sex couple seeking to marry” but only to a “specific grievance” raised by a same-sex couple “for the purpose of assessing that grievance from the viewpoint of that provision” (Orlandi and Others, dissenting opinion of Judges Pejchal and Wojtyczeck, § 8). This kind of nonsensical rationalization arises from the mess created by the Court, in which Article 12 is said to apply to same-sex couples at the same time that states are free to operate a total prohibition of same-sex marriage.
Conclusion: the Court should be clear and honest about its denial of the right to marry to same-sex couples
In my view, the Court’s position that Article 12 “applies” to same-sex couples seeking to challenge the prohibition of marriage is dishonest.
It is dishonest because, in the context of the Court’s general jurisprudence on Article 12 – which prohibits states from restricting or reducing any person’s ability to marry in such a way that impairs the very essence of the right (Rees v the United Kingdom § 50) or deprives a person or group of persons of the right to marry with the partners of their choice (O’Donoghue and Others § 83) – if Article 12 does apply to same-sex couples then the Court should find that the prohibition of same-sex marriage is in violation of it.
Because the Court has never found that the prohibition of same-sex marriage violates Article 12 but, instead, has rejected every complaint on this matter that has come before it, it is difficult to reach any conclusion other than that the “applicability” of Article 12 to same-sex couples seeking access to marriage is theoretical and illusory, and of no practical or effective benefit.
The theory that Article 12 applies to same-sex couples creates the illusion that it is worth same-sex couples pursuing litigation against the prohibition of same-sex marriage on this ground. In other words, the Court has created a situation in which Article 12 appears to offer same-sex couples some hope of challenging the prohibition of marriage whilst, at the same time, continuing to reject all such complaints that come before it.
Why the Court maintains this position on the applicability of Article 12 is unknown. It might be generously understood as part of a staged process whereby the Court is carefully opening the door to, one day in the future, recognizing that, in light of present-day conditions in Europe, Article 12 requires states to provide same-sex couples with access to marriage. It is more likely that the Court’s position has arisen, haphazardly, from tensions between its judges, some of whom would like to expand Article 12 to same-sex couples whilst others would not. This may have led to the problematic position in which Article 12 is said to apply to same-sex couples but be of no utility whatsoever to them when excluded from marriage.
The mess made by the Court in interpreting Article 12 is, at the very least, distracting. It leads to domestic courts becoming “bogged down” in confusion about what the Court really means about Article 12 and same-sex marriage – a confusion which was apparent in the Privy Council this week – whilst the Court continues to reject complaints from same-sex couples seeking access to marriage.
In my view, given that complaints about the prohibition of same-sex marriage have not succeeded in the Court under Article 12, litigation in the domestic courts on this issue should seek to escape the limitations imposed by the Court in respect of Article 12 and use the Convention more creatively. Litigation in the domestic courts – like that in the Privy Council – should not focus exclusively on whether a right to same-sex marriage can be derived from Article 12 but whether, for example, the prohibition of marriage violates Article 3 of the Convention. As I have argued elsewhere, there is nothing to prevent domestic courts creatively using the substantive Articles of the Convention, such as Article 3, in order to address the ‘degrading treatment’ that results from refusing to allow same-sex couples to marry.
A more creative use of other Articles of the Convention would allow the domestic courts to avoid the mess created by the Court in respect of Article 12 and, at the same time, address the obvious ill-treatment of same-sex couples who are told, in jurisdictions such as the Cayman Islands, that their relationships do not have the same value as different-sex couples.
Some parts of this post are adapted from Paul Johnson and Silvia Falcetta, “Same-Sex Marriage and Article 12 of the European Convention on Human Rights” in Chris Ashford and Alexander Maine (eds), Research Handbook on Gender, Sexuality and the Law (Edward Elgar Publishing) available at SSRN: https://ssrn.com/abstract=3136642
 Nicolas Bratza, ‘The European Convention on Human Rights and the Charter of Fundamental Rights of the European Union: A Process of Mutual Enrichment’ in Yves Bot, Allan Rosas, Egils Levits (eds), The Court of Justice and the Construction of Europe: Analyses and Perspectives on Sixty Years of Case-law (T.M.C. Asser Press 2013), 171 (emphasis added).
 I have proposed that excluding same-sex couples from marriage should be regarded as amounting to a form of degrading treatment in violation of Article 3 (prohibition of torture) of the Convention. See Paul Johnson and Silvia Falcetta, ‘Sexual Orientation Discrimination and Article 3 of the European Convention on Human Rights: Developing the Protection of Sexual Minorities’ (2018) European Law Review, 43(2) 167-185.