Thursday, 14 December 2017

Italy violated the ECHR by refusing to give some recognition to same-sex couples married abroad: Orlandi and Others v Italy

The First Section of the European Court of Human Rights has today issued its judgment in the case of Orlandi and Others v Italy

The case concerns six same-sex couples who complained that the refusal of the Italian authorities to register their marriages contracted abroad, and more generally the impossibility of obtaining legal recognition of their relationship in Italy - which, at the time of the complaint did not allow for marriage between persons of the same sex nor provide for any other type of union which could give them legal recognition - violated their rights under Articles 8, 12 and 14 of the European Convention on Human Rights.

Article 8 of the Convention

The applicants complained under Article 8 that on their return to Italy from abroad they were refused registration of their marriages, either as marriages or under any other form, depriving them of any legal protection or associated rights.

In response, the Court reiterated that States are free, under Article 12 of the Convention as well as under Article 14 taken in conjunction with Article 8, to restrict access to marriage to different-sex couples. 

Nevertheless, the Court noted that it has acknowledged that same-sex couples are in need of legal recognition and protection of their relationships.

The majority concluded: 
"...the Italian State could not reasonably disregard the situation of the applicants which corresponded to a family life within the meaning of Article 8 of the Convention, without offering the applicants a means to safeguard their relationship. However, until recently, the national authorities failed to recognise that situation or provide any form of protection to the applicants’ union, as a result of the legal vacuum which existed in Italian law (in so far as it did not provide for any union capable of safeguarding the applicants’ relationship before 2016). It follows that the State failed to strike a fair balance between any competing interests in so far as they failed to ensure that the applicants had available a specific legal framework providing for the recognition and protection of their same-sex unions".
On this basis, the Court concluded there had been a violation of Article 8.

Article 14 in conjunction with Article 8 or 12 of the Convention

The Court concluded that it was not necessary to examine whether there had been a violation under these Articles.

First thoughts on the judgment...

In one sense, the judgment in this case may appear to be disappointing because it adds little or nothing to the Court's jurisprudence on same-sex marriage. For the same-sex couples who married abroad and sought legal recognition of their marriages in Italy, the Court reminds them that no right to same-sex marriage flows from the Convention and, therefore, "States must in principle be afforded a wide margin of appreciation, regarding the decision as to whether to register, as marriages, such marriages contracted abroad".

Moreover, by refusing to even consider a complaint about the non-recognition of marriage under Article 12 (in conjunction with Article 14) the Court continues to send the message that, to put it prosaically, the right to marry enshrined in Article 12 has nothing to do with same-sex couples. So much, then, for the statement in Schalk and Kopf v Austria seven years ago that "the Court 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". 

The judgment adds, in my view, to the general confusion in the Court's case law about the applicability of Article 12 to same-sex couples, which has resulted in complaints about marriage discrimination brought by same-sex couples being handled by the Court in very different ways: some have been declared admissible but no violation has been found, some have been declared inadmissible, and some have been said to not require examination. 

The question of "applicability", which I think remains axiomatic to complaints brought under Article 12 regarding same-sex marriage, is addressed specifically in the judgment. The majority state that 
"[s]ince the Court has already held Article 12 to be applicable to a same sex-couple wishing to marry, the provision must also be applicable to same-sex couples who are already married under the domestic system of another State". 
However, I have sympathy with the long consideration given by Dissenting Judges Pejchal and Wojtyczek to the issue of "applicability". Although I do not share their substantive view of Article 12 ("[g]ranting access to marriage within the meaning of Article 12 to same-sex couples is conceptually impossible") I do understand why they challenge the majority on the question of applicability. 

As I have stated before: if Article 12 "applies" to same-sex couples, then the Court needs to explain how depriving same-sex couples of the right to marry (or, in this case, not recognising a same-sex marriage contracted abroad) meets its own requirement that a State cannot "restrict or reduce the right [to marry] in such a way or to such an extent that the very essence of the right is impaired" (Rees v the United Kingdom) and, therefore, "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). I remain of the opinion that stating that Article 12 can apply to same-sex couples in some circumstances, declaring a complaint by a same-sex couple about their exclusion from marriage admissible, and then finding that such exclusion does not violate Article 12 of the Convention, is an illogical approach. In my view, Article 12, as I explained here, remains, in practical terms, inapplicable to same-sex couples. 

One clearly positive aspect of this judgment, however, is that it reiterates the Court's view that same-sex couples should be provided with a "specific legal framework providing for the recognition and protection of their same-sex unions" and, crucially, to not provide such a framework is in violation of the right to respect for family life enshrined in Article 8 of the Convention.

I also note slight glimmers of positive change in the Court's language relating to marriage. For instance, the Court states that "States are still free, under Article 12 of the Convention ... to restrict access to marriage to different-sex couples". Dissenting Judges Pejchal and Wojtyczek do not like the use of the word "still" which, I agree, "suggests the Court intends to revise this view in the future". The Court also states that the decision of a State not to permit same-sex marriage is "not condemnable under the Convention" and the introduction of the word "condemnable" is stronger than any language the Court has previously used, which opens up the opportunity to consider whether such a decision should be condemned. 

The Dissenting Opinion of Judges Pejchal and Wojtyczek

I think it is important to note the extremely disappointing comments made by Judges Pejchal (Czech Republic) and Wojtyczek (Poland) who go to great lengths to make one of the most explicitly heteronormative (and, some might say, homophobic) interpretation of the Convention ever written into a judgment of the Court (although, for some others, see here). 

Judges Pejchal and Wojtyczek argue that, for instance, "the family unit is founded primarily by a man and a woman through marriage" and that this is reflected in the right to respect for family life contained in Article 8 - a view which the Court has consistently rejected since 2010. 

Moreover, Judges Pejchal and Wojtyczek go to great lengths to establish that the fundamental meaning of marriage is based on a relationship between a man and a woman:
"Marriage in its initial meaning presupposes the community of lives between a man and a woman. We note in this context the following definitions of marriage: “Nuptiae sunt coniunctio maris et feminae et consortium omnis vitae, divini et humani iuriscommunicatio” (Modestinus, Digesta Iustiniani 23.2.1); “Nuptiae autem sive matrimonium est viri et mulieris coniunctio, individuam consuetudinem vitae continens” (Institutiones Iustiniani, 1.10). The complementariness of the biological sexes of the two spouses is a constitutive element of marriage. Moreover, marriage in this meaning is - by definition - a social institution open to procreation. The fact that certain married couples may suffer from infertility does not affect its social function. Marriage in its second meaning designates a union of two persons living together. The term “marriage” in this second sense has a different connotation and a different denotation to the term “marriage” as used in the first meaning. This second meaning has developed only recently. Granting access to marriage within the meaning of Article 12 to same-sex couples is conceptually impossible. “Extending” the scope of the right to marry to homosexual couples presupposes that the term “marriage” is used in a different meaning (that is, the second meaning explained above)."
One might wonder how, in relying on texts from at least 1500 years ago to inform their view of Article 12 and the world generally, Judges Pejchal and Wojtyczek meet the long-standing requirement placed on them to consider the European Convention on Human Rights as a living instrument that must be interpreted in the light of present-day conditions. 

Judges Pejchal and Wojtyczek also state that the Court "has no mandate to favour or inhibit societal changes". This flies in the face of general Convention jurisprudence. The Court has long established that the Convention is a "constitutional instrument of European public order” and this has led it to require changes in States in order to meet the standards of the Convention. In this sense, Judges Pejchal and Wojtyczek are wrong to end their dissenting opinion with the parting-shot that there can be “no social transformation without representation” because, clearly, all sorts of social transformation result from the judgments of the Court that go against the representations made by States. Perhaps it would have been more honest of Judges Pejchal and Wojtyczek to say that they do not favour the "social transformation" under consideration in the judgment. 

Friday, 24 November 2017

Religious marriage of same-sex couples: new report

I'm pleased to announce the publication of a new report on religious marriage of same-sex couples in England and Wales.

Same-sex marriage has been legal in England and Wales since 2013, but same-sex marriages solemnised by religious ceremonies are very small in number. This is because same-sex couples can marry in only 182 of the approximately 40,000 places of worship in which different-sex couples can marry. 

This report is the first empirical study of religious same-sex marriage. It draws on data collected from 71 places of worship that are registered to solemnise same-sex marriage. 

I hope the report will stimulate debate about the current relationship between marriage, religion, and equality on the grounds of sexual orientation.

The report can be downloaded here:

Saturday, 18 November 2017

New communicated case about "homosexual propaganda" laws in Russia: Klimova v Russia

The Third Section of the European Court of Human Rights has communicated the case of Klimova v Russia. The case concerns the enforcement of "homosexual propaganda" laws in Russia.

The facts

The applicant, Ms Klimova, is a journalist and the founder of an online support project for LGBT teenagers “Children-404”. The name refers to the Internet error message "Error 404 - Page not found" in allusion to the invisibility of LGBT adolescents and their specific problems in an LGBT-intolerant environment of Russia.

The applicant was the administrator of the project’s Internet site and of a dedicated online community on the social networking site VKontakte which provided a space for teenagers to discuss LGBT issues and support each other.

On 3 August 2015 the applicant was found guilty of the administrative offence of “public activities aimed at the promotion of homosexuality among minors” and sentenced to a fine of 50,000 Russian roubles. The domestic courts found that the applicant, in her capacity as the administrator of the VKontakte community “Children-404”, had published users’ posts and had failed to delete users’ comments promoting homosexuality.

On 7 August 2015 the Tsentralnyy District Court of Barnaul found that the web page of the VKontakte community “Children-404” contained information prohibited for dissemination in Russia, in particular information promoting homosexuality among minors. Four unrelated VKontakte webpages (including a gay dating web page and a gay pornography web page) were also banned by the same decision for the same reasons. The applicant was not informed about the hearing and learned about the decision when the webpage was blocked. Her appeal and cassation appeals were rejected.

On 13 April 2016 the Tsentralnyy District Court of Barnaul found that the new web page of the VKontakte community “Children-404” and their Internet site also contained information promoting homosexuality among minors and should be therefore prohibited for dissemination in Russia.

Questions to the Parties

The Court has asked the parties the following questions:
  1. Did the applicant’s conviction of an administrative offence and the blocking of two web pages of the VKontakte community “Children-404” (¬404_vk and and of the related Internet site ( of which she was the administrator amount to an interference with the applicant’s freedom of expression within the meaning of Article 10 § 1 of the Convention? If so, was that interference compatible with the requirements of Article 10 § 2? In particular:
    • Was the interference prescribed by law? What legitimate aim did the contested measures pursue, were they proportionate to that legitimate aim and necessary in a democratic society?
    • Was the decision-making process leading to the interference fair and such as to afford due respect to the interests safeguarded to the individual by the Convention (see, as a recent authority, Karácsony and Others v. Hungary [GC], nos. 42461/13 and 44357/13, § 133, ECHR 2016)? In particular, did the domestic courts specify which publications were problematic (see Kaos Gl v. Turkey, no. 4982/07, §§ 57 and 58, 22 November 2016)? Did the executive authorities and the courts consider the collateral effect that a blocking decision may have on the material which has not been found to be illegal? Did the decision of 7 August 2015 make a separate assessment in respect of each of the five unrelated webpages?
  2. Has the applicant suffered discrimination on grounds of sexual orientation, contrary to Article 14 of the Convention read in conjunction with Article 10?
The webpages

The relevant webpages are:

“Children-404” (
VKontakte Internet site (

Friday, 27 October 2017

Excluding different-sex couples from registered partnerships does not violate the ECHR: Ratzenböck and Seydl v Austria

The Fifth Section of the European Court of Human Rights has issued its judgment in the case of Ratzenböck and Seydl v Austria, holding by a majority that denying a different-sex couple the opportunity to enter into a registered partnership (a legal institution in Austria exclusively reserved for same-sex couples) does not amount to discrimination on the grounds of sexual orientation in violation of Article 14 taken in conjunction with Article 8 of the European Convention on Human Rights.


The context for this case is the legal situation pertaining to the recognition of couple relationships in Austria.

Different-sex couples in Austria are able to marry, whereas same-sex couples are not. Since 2010, same-sex couples have been able to enter into a registered partnership. This legal institution was introduced in order to provide same-sex couples with a formal mechanism for recognising and giving legal effect to their relationships, without giving them access to marriage.

The applicants in this case, a different-sex couple, complained that excluding them from registered partnerships amounted to discrimination based on their sex and sexual orientation. They claimed that “marriage was not a suitable alternative for them”.

The Court’s judgment

Unfortunately for the applicants, although the Court unanimously declared their application admissible it did not progress very far on the merits. This is because, pursuing its standard mode of analysis under Article 14 of the Convention, a majority of the Court concluded that the complaint did not satisfy the first “test”: that is, whether the applicants were in a relevantly similar situation to others treated differently.

The majority, in comparing the applicants with same-sex couples, concluded that they were not in a relevantly similar or comparable situation. The majority reached this conclusion principally by stating that different-sex couples have access to marriage, which satisfies their principal need for legal recognition of their relationships. They are, therefore, not comparable to same-sex couples who were given access to registered partnerships in order to counterbalance their exclusion from access to the legal recognition of their relationships prior to 2010.

Dissenting judges Tsotsoria and Grozev

Judges Tsotsoria (Georgia) and Grozev (Bulgaria) dissented from the majority judgment in terms of its approach and conclusion, arguing that the applicants had suffered a difference in treatment amounting to a violation of Article 14 taken in conjunction with Article 8 of the Convention.

The two judges argued, drawing on the Court’s existing case law, that different-sex couples and same-sex couples “are in principle in a relatively similar or comparable situation as regards their general need for legal recognition and protection of their relationship”. As such, therefore, the Court should have compared different-sex and same-sex couples for the purposes of Article 14 and then considered the Austrian government’s justification for the difference in treatment.

Since, in the view of these two judges, the Austrian government had not provided a sufficiently strong justification in support of the difference in treatment, the Court should have found a violation. To not do so, they argued, pursues “a risky course” and “inevitably runs the risk of sliding into stereotypes about the ‘different’ nature of a heterosexual and a homosexual relationship”.

Some interesting aspects of the judgment

Obviously, the question of whether in this case same-sex and different-sex couples are comparable, for the purposes of Article 14, will divide opinion.

Some will accept the Court’s approach in the light of the overall legal framework governing the legal recognition of relationships in Austria. Specifically, they will accept that it is reasonable to see the difference in treatment as having arisen from an attempt to address discrimination against same-sex couples – with registered partnerships being, not an “alternative” to marriage, but a way of giving some legal recognition to same-sex couples short of marriage – and that such a difference in treatment does not create a detriment for different-sex couples. In other words, different-sex couples are not being treated differently in a way that amounts to discrimination against them, because they already have access to the “gold standard” form of legal recognition, marriage. If any discrimination exists in the difference of treatment, therefore, it is against same-sex couples since they remain excluded from marriage. I tend towards this view myself.

Others, however, will regard the difference in treatment complained of to be based on sexual orientation (or sex) and consider that there is, in principle, no justification for it. This may be founded on the view that different-sex couples should have access to a more “modern” or “contemporary” legal institution other than marriage (which, it could be said, may be seen by some to be a different argument to one based on discrimination). It could be argued that this view is, perhaps, more persuasive in a legal jurisdiction like England and Wales in which both different-sex and same-sex couples have access to marriage, but only same-sex couples have access to civil partnerships.

What I find most interesting in the judgment are some of the remarks made by Judges Tsotsoria and Grozev. Although these judges were clearly in favour of different-sex couples having access to registered partnerships, they appear to endorse (or, at least, do not question) the current and settled view of the Court that the Convention does not guarantee same-sex couples a right to marry. They can be seen to do this by seemingly validating the Court’s view, expressed in Schalk and Kopf v Austria, that a justification for excluding same-sex couples from marriage that is “rooted in hundreds of years of history and tradition” is different to a justification about a difference in treatment based on “fresh legislative choices made today”. Are Judges Tsotsoria and Grozev endorsing the view that some discrimination is acceptable because it is rooted in history and tradition?

A further interesting point about the remarks made by Judges Tsotsoria and Grozev concerns their criticism of the majority for refusing to compare different-sex couples and same-sex couples as a “social reality”, but rather seeing them as “groups created by the legislature”. They argue:

“Different-sex couples and same-sex couples are not groups of individuals which have been created by regulatory choices. They are social groups which exist irrespective of regulatory choices…”

Such a view is in direct contrast with those who regard the “social reality” of couples, and their intimate relationships, being grouped on the basis of sex and sexual orientation as the direct outcome of regulatory choices made in society, principally by way of formalized rules enshrined in law.

A generally accepted view among sociologists, for instance, is that the social grouping of persons on the grounds of their sexual orientation flows from, and does not pre-exist, forms of legal and other regulation. In this sense, such groups are “socially constructed” by law and other means and, contrary to what Judges Tsotsoria and Grozev argue, have no independent existence outside of “regulatory choices”. By contrast, Judges Tsotsoria and Grozev can be seen to adopt an “essentialist” view of sexual orientation that has been expressed in the Court in many different ways since the time of Dudgeon v the United Kingdom.

Wednesday, 27 September 2017

Same-sex marriage and Article 3 ECHR: a new approach to addressing marriage discrimination

Paul Johnson and Silvia Falcetta

During recent months, we have been carrying out research on the utility of Article 3 of the European Convention on Human Rights for addressing discrimination on the grounds of sexual orientation.

Article 3 of the Convention provides the absolute guarantee that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment”. Given the scope of this guarantee, one might expect that Article 3 would have been a key provision for addressing the wide spectrum of ill-treatment to which individuals have been subjected because of their sexual orientation. However, since the Convention entered into force in 1953, Article 3 has rarely been utilized to address sexual orientation discrimination, and it was not until 2012 that a complaint brought under Article 3 about sexual orientation discrimination succeeded in the European Court of Human Rights.

In an article to be published in European Law Review, we provide a critical analysis of the history and evolution of the Court’s Article 3 jurisprudence in order to assess the ways in which this has developed the protection of sexual minorities in Europe. We identify major gaps in this protection, most notably in respect of asylum, and argue that the Court’s Article 3 jurisprudence should be further evolved to address these.

A key focus of our research is on how sexual minorities might better and more creatively use Article 3 of the Convention in the future to address discrimination against them. One area of discrimination we focus on specifically is in respect of marriage.

Article 3 and same-sex marriage

Article 3 of the Convention has never been invoked in a complaint to the European Court of Human Rights about the lack of access to or legal recognition of same-sex marriage. This is not wholly surprising because the Convention contains a substantive provision on marriage, enshrined in Article 12, which has been the principal focus of same-sex marriage cases both in the Court and in domestic courts in Council of Europe states. However, the key problem for those seeking marriage equality under Article 12 of the Convention is that the Court has held that this provision is founded on the concept of a “union between partners of different sex” (Schalk and Kopf v Austria, para 55) and has consistently held that it “does not impose an obligation on [a] Government to grant a same-sex couple […] access to marriage” (Oliari and Others v Italy, para 192). As a consequence, the Court maintains the inflexible view that same-sex couples have no recourse under Article 12 to being excluded from the rights and benefits attached to marriage.

The question that arises, therefore, is how it might be possible for same-sex couples to break down the “heteronormative firewall” that the Court has built around marriage. We argue that Article 3 provides such a possibility. It does so, we suggest, because Article 3 offers the opportunity to address and eradicate marriage discrimination from the standpoint of “human dignity”, respect for which is the “very essence of the Convention” (Bouyid v Belgium [GC], para 89) and “one of the most fundamental values of democratic society” (Z. and Others v the United Kingdom [GC], para 73).

The close connection between the right to marry and respect for human dignity has been thoroughly explored by courts as well as by scholars. For example, the Supreme Court of the United States of America recognized that “the transcendent importance of marriage” is the “nobility and dignity” it offers to couples, and that same-sex couples seeking access to marriage are asking “for equal dignity in the eyes of the law” (Obergefell v Hodges, 576 U.S._ (2015) 3 and 28). We think that when same-sex couples go to the European Court of Human Rights with complaints about marriage discrimination they are highlighting forms of subjective distress and injurious effects that strike at the very core of their human dignity.

Our proposition is that the damage to human dignity created by exclusion from marriage can be argued to amount to degrading treatment within the meaning of Article 3 of the Convention. Through a comprehensive assessment of the Court’s jurisprudence, we consider it reasonable and persuasive to argue that being denied access to marriage, on the basis of sexual orientation, causes forms of personal suffering and humiliation that reach the threshold set by the Court to be deemed degrading treatment under Article 3. This is because there are an extensive number of ways in which, as a result of being excluded from marriage, same-sex couples suffer humiliation and debasement in their own eyes and the eyes of others, are driven to act against their will or conscience, are treated with a lack of respect, and are diminished in the societies in which they live – forms of suffering which, in other contexts, have been held by the Court to be degrading within the terms of Article 3 (M.C. and A.C. v Romania, para 108).

We recognize that some may argue against our claim that denying same-sex couples access to marry amounts to degrading treatment contrary to Article 3 of the Convention. We seek to address, in our article, some of the legal and other arguments that might be put forward against our proposition. However, when we consider the types of treatment that the Court has considered as “degrading” in the past – for example, depriving a person in prison of his reading glasses (Slyusarev v Russia, paras 43-44) – we argue that there is scope to extend this provision to recognize the exclusion from marriage as a form of ill-treatment that is prohibited by the Convention.

The great value of seeking to address the issue of same-sex marriage under Article 3 is that it escapes the confines of Article 12 and, in doing so, avoids historical questions concerning whether the wording of the right to marry refers only to unions between men and women. This may be useful in the domestic courts, as well as the European Court of Human Rights.

For example, in cases concerning marriage discrimination in Northern Ireland, although it was recognized that the exclusion of same-sex couples from marriage created “psychiatric damage caused by isolation, insult and disapproval”, the High Court was “driven to conclude that the Convention rights of the applicants have not been violated” because “the Strasbourg Court does not recognise a ‘right’ to same sex marriage” (Close et al [2017] NIQB 79). The High Court reached this conclusion principally by considering the issue under Article 12 of the Convention and following the jurisprudence of the European Court of Human Rights on that Article. Our view is that a more fruitful way of addressing the “psychiatric damage caused by isolation, insult and disapproval” caused by excluding same-sex couples from marriage is to recognize that such “damage” is the result of a form of degrading treatment that is prohibited by the Convention under Article 3.

Reading our research

Our research will be published in European Law Review in mid 2018. However, any academic or practitioner who would like a pre-print copy of the article can request one from

Friday, 8 September 2017

18 year anniversary of "gays in the military" ECHR judgments

Young people joining the UK armed forces today may know little or nothing of the time when being gay in the British Army, Royal Air Force, or Royal Navy and Marines could have led to a term of imprisonment and/or discharge. 

Today, thankfully, gay men and lesbians are welcome to serve in the UK armed forces and enjoy protection from discrimination on the grounds of sexual orientation. The Army's commitment to Pride this year is just one example of the transformation in attitudes towards inclusiveness in the armed forces in respect of sexual orientation. 

The acceptance of lesbians and gay men in the UK armed forces is largely the result of ground-breaking judgments handed down by the European Court of Human Rights 18 years ago this month. 

The judgments in Lustig-Prean and Beckett v the United Kingdom and Smith and Grady v the United Kingdom responded to complaints by four gay applicants - John Beckett, Graeme Grady, Duncan Lustig-Prean, and Jeanette Smith - about their treatment by the armed forces after they had been reported to and investigated by ‘service police’ in relation to their sexual orientation. All four endured extensive and intrusive investigations and were subsequently administratively discharged (sacked) because of their sexual orientation.

Prior history

These cases were not the first time that gay service personnel had gone to Strasbourg with a complaint about sexual orientation discrimination. 

The first person to take such a complaint was the applicant in B. v the United Kingdom, a male non-commissioned officer who had served in the British Army for eight years. He complained about his conviction for consensual homosexual acts committed in private on separate occasions with a gunner in his regiment and a civilian. The applicant, who had an exemplary military record, was convicted of ‘disgraceful conduct of a cruel, indecent or unnatural kind’ and was sentenced to a reduction in rank and to nine months’ imprisonment with corrective military training, followed by dishonourable discharge. 

The former European Commission of Human Rights responded to this complaint in 1983 by dismissing it on the basis that the ‘court-marital and dismissal from the service can be considered “necessary in a democratic society” for the “protection of morals” and also “for the prevention of disorder” in the context of military service’.

In 1991, the House of Commons Select Committee responsible for scrutinising the quinquennial Armed Forces Bill recommended that ‘homosexual activity of a kind that is legal in civilian law should not constitute an offence under Service law’. In reaching that conclusion, the Committee took evidence from, among others, a founding member of Stonewall, Michael Cashman (now Lord Cashman), and co-founder of Rank Outsiders, Robert Ely. As a consequence of the Select Committee’s recommendation, male homosexual acts were partially ‘decriminalized’ in the armed forces in 1994.

However, regardless of the legislative change in 1994, gay men and lesbians could still be discharged from the armed forces for the mere fact of being gay. This was happening at an astounding rate: by my estimation, between the mid 1980s and 1990s, six service personnel were on average discharged from the armed forces per month for the sole reason that they were gay.

The ECtHR 1999 judgments

When John Beckett, Graeme Grady, Duncan Lustig-Prean, and Jeanette Smith went to Strasbourg they did so with the ambition of challenging the legality of their discharge from the armed forces and their treatment during the course of this discharge. 

The judgments in Smith and Grady and Lustig-Prean and Beckett marked a sea change in the Court’s conceptualization of homosexuality. They demonstrated a significant absence of the view, once hegemonic in the former Commission, that homosexual men and homosexual sexual practices represented a social danger that justified their containment and suppression.

The Court stated that it regarded the interference with the applicants’ right to respect for their private lives as ‘especially grave’ for a number of reasons. First, the investigation process ‘was of an exceptionally intrusive character’, carried out according to methods based on criminal procedures, and sometimes involving a range of individuals associated with the applicants. For example, Ms Smith’s partner, Margaret Fleming, who was not a member of the armed forces, was interviewed and asked, inter alia, ‘what sexual acts she and her partner performed and whether she and her partner had had sex with their foster daughter’. Secondly, the discharge of the applicants had a ‘profound effect on their careers and prospects’. Thirdly, the policy under which the applicants were discharged was of an ‘absolute and general character’, which operated ‘irrespective of the individual’s conduct or service record’.

As a result of the Court upholding the applicants' complaints in September 1999, the UK government announced in January 2000 that ‘homosexuality will no longer be a bar to service in Britain’s armed forces’. Subsequent to this, the Court upheld complaints lodged by several other gay and lesbian service personnel who had been administratively discharged because of their sexual orientation. These included judgments in Perkins and R. v the United Kingdom and Beck, Copp and Bazeley v the United Kingdom.

Legislative developments since 1999

Recent legislative developments show just how far the UK Parliament has come in respect of gay men and lesbians serving in the armed forces.

In 2016, Parliament took the step of repealing the final piece of anti-gay law relating to the armed forces. I described that process at the time in the Huffington Post; a process in which Duncan Lustig-Prean, of Lustig-Prean and Beckett v the United Kingdom, played an instrumental role.

This year, as part of the legislation that granted posthumous pardons to those persons previously convicted or cautioned for now-repealed (homo)sexual offences, Parliament extended pardons to those convicted of specific service offences. As a result of interventions made by Lord Lexden, these pardons extend back as far as 1661 (the year that 'An Act for the regulation and better government of the navy' stated that if 'any person or persons in or belonging to the Fleet, shall commit the unnatural and detestable Sin of Buggery or Sodomy' they 'shall be punished with death, without mercy').

Remembering brave people

The late, great James Baldwin said: "History is not the past. It is the present. We carry our history with us. We are our history. If we pretend otherwise, we literally are criminals."

As part of ensuring that this recent history of change in the armed forces remains with us, my small contribution has been to assemble oral histories by some of those who went to Strasbourg with complaints about discrimination.

In the book "Going to Strasbourg", Duncan Lustig-Prean, Graeme Grady, Terence Perkins, Emma Riley, and Kevin Bazeley talk extensively about their experiences of taking their complaints to the Strasbourg Court. And some of these brave people also talk about their experiences in this podcast.

18 years after the judgments in 
Smith and Grady and Lustig-Prean and Beckett, we can reflect on and give thanks for the tremendous sacrifices and brave deeds of those people who actively changed the legal landscape of the UK and made it possible for gay men and lesbians to serve in the UK armed forces without the fear of institutional persecution.

Wednesday, 23 August 2017

Would Strasbourg solve the conundrum of same-sex marriage in Northern Ireland?

Last week, the High Court of Northern Ireland rejected petitions challenging the prohibition of same-sex marriage in Northern Ireland. The petitions were brought by two same-sex couples who entered into civil partnerships in 2005 but want to be married couples, and by a man who lawfully married another man in England and wishes his marriage to be recognized in Northern Ireland. The petitioners claim that denying them the opportunity to marry or refusing to recognize a lawful marriage violates their rights under the European Convention on Human Rights.

The context of these cases is the legislative arrangements for marriage in the UK that must, to anyone outside of the UK and most people in the UK, appear byzantine. Same-sex marriage was made lawful in England and Wales by the UK Parliament in 2013, and in Scotland by the Scottish Parliament in 2014. However, the Northern Ireland Assembly, which has competency to deal with the “transferred matter” of marriage in Northern Ireland by virtue of the devolution settlement created by the Northern Ireland Act 1998, has not legislated to make same-sex marriage lawful.

Although a majority of Northern Ireland Assembly Members voted in November 2015 in support of a Private Member’s proposal to call on the Executive to table legislation to allow for same-sex marriage (the vote was Ayes 53 and Noes 52), the proposal was negatived because a “petition of concern” had been submitted by certain Members which meant that the proposal required “cross-community” support rather than a simple majority – which it did not receive. As a consequence, the relevant marriage legislation in Northern Ireland – the Marriage (Northern Ireland) Order 2003 – continues to prohibit marriage if “both parties are of the same sex”.

The High Court of Northern Ireland - Mr Justice O’Hara’s judgments

In rejecting the same-sex marriage petitions, Mr Justice O’Hara recognized “the compelling evidence put before me about the effect on the gay and lesbian community of being treated less favourably than others so repeatedly and for so long” and noted “the psychiatric damage caused by isolation, insult and disapproval”. However, he rejected the petitions on the basis that “[i]t is not the role of a judge to decide on social policy.  That is for the Executive and the Assembly under our constitution.”

Mr Justice O’Hara reached his judgment principally by following the jurisprudence of the European Court of Human Rights. He was bound to do so by the requirement of the Human Rights Act 1998 – the legislation which gives the European Convention on Human Rights direct effect in the domestic courts of the UK – that a court determining a question which has arisen in connection with a Convention right must take into account any judgment, decision, declaration or advisory opinion of the Strasbourg Court.

There was, on this basis, little chance that Mr Justice O’Hara was ever going to reach a different conclusion to the one set out in his judgments. He was, as he put it,  “driven to conclude that the Convention rights of the applicants have not been violated” because “the Strasbourg Court does not recognise a ‘right’ to same sex marriage. That being the case, the current statutory provisions in Northern Ireland do not violate any rights. Those rights do not exist in any legal sense.”

Would the European Court of Human Rights reach a different conclusion?

If the petitioners in these cases took their complaints to the UK Supreme Court and that court reached the same conclusion as the High Court of Northern Ireland, would “going to Strasbourg” with these complaints be worthwhile?

The simple answer is that it is almost certain that any complaint of this kind heard in Strasbourg today would fail. This is because the European Court of Human Rights has been consistently clear that “the question whether or not to allow same-sex marriage is left to regulation by the national law of the Contracting State” (Schalk and Kopf v Austria, 2010, para 61) on the basis that, fundamentally, “Article 12 of the Convention [the right to marry] does not impose an obligation on [a] Government to grant a same-sex couple … access to marriage” (Oliari and Others v Italy, 2015, para 192).

However, there is a “twist” in the Northern Ireland cases that may give the applicants some sense of optimism despite the Court’s settled jurisprudence. This relates to the fact that one of the applicants is not claiming the right to marry per se but, rather, the right to have a legally solemnized marriage recognized. This applicant claims that it is a violation of his Convention rights for one jurisdiction of the UK (Northern Ireland) to fail to recognize a marriage that he lawfully entered into in another jurisdiction (England and Wales).

Although the Strasbourg Court has not previously considered a case of this kind – in which the national law of a Contracting State allows same-sex marriage in one jurisdiction but not another – it is unlikely that the Court would interpret the legislative arrangements for same-sex marriage in the UK to be in violation of Convention rights. Although the Northern Ireland cases raise some new legal questions, not least in respect of a difference in treatment based on residence in different jurisdictions of a State, the Strasbourg Court would undoubtedly start from the position that there is no right to same-sex marriage under the Convention.

On this basis, the Strasbourg Court may declare the Northern Ireland complaints inadmissible under Article 12 alone and/or in conjunction with Article 14 of the Convention – that has certainly been the Court’s approach in some recent cases brought before it under Article 12 about marriage discrimination based on sexual orientation. However, if the Northern Ireland complaints were declared admissible – which may be more likely because of their “special circumstances” – then the Court would probably find as follows.

Same-sex couples who wish to marry in Northern Ireland

In respect of the complaints by those same-sex couples who are in civil partnerships and wish to get married in Northern Ireland but are prevented from doing so, the Strasbourg Court would probably reiterate its settled view, as recently expressed by its Grand Chamber, that Article 12 of the Convention “secures the fundamental right of a man and woman to marry and to found a family” and, as such, “enshrines the traditional concept of marriage as being between a man and a woman” (Hämäläinen v Finland, 2014, para 96).

On this basis the Court would likely reiterate that Article 12 cannot be construed as imposing an obligation on the Contracting State to grant access to marriage to same-sex couples. Moreover, the Court would probably conclude that “the question whether or not to allow same-sex marriage is left to regulation by the national law of the Contracting State” (in this case, the national law as determined by the Northern Ireland Assembly) and that the Court must “not rush to substitute its own judgment in place of that of the national authorities, who are best placed to assess and respond to the needs of society” (Schalk and Kopf v Austria, 2010, paras 61-62). Therefore, a complaint under Article 12 alone would likely be rejected.

What about a complaint about discrimination, brought under Article 12 in conjunction with Article 14 of the Convention? Clearly there is a difference in treatment between same-sex and different-sex couples in Northern Ireland, and between same-sex couples in Northern Ireland and all other couples in the rest of the UK. Such a complaint would also probably fail because the anti-discrimination provisions in Article 14 have no independent existence and have effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by the Convention. Since the right to same-sex marriage is not safeguarded by the Convention, any complaint under Article 14 would likely be rejected (see, most recently, Chapin and Charpentier v France, 2016). In addition, attempting to combine Article 14 with Article 8 of the Convention (right to respect for private and family life) would also probably fail (see Schalk and Kopf v Austria, 2010).

Same-sex couples who want a lawful marriage solemnized in England to be recognized in Northern Ireland

In respect of the applicant who claims that denying his same-sex marriage legal recognition in Northern Ireland is a violation of his human rights, there are a number of arguments he could make in Strasbourg. The most obvious argument is that he is legally married but, by virtue of the legislative framework for marriage in the UK, when he travels from one legal jurisdiction to another his marriage is effectively taken away. This was a problem recognized by the United States Supreme Court when it overturned the situation in which a lawful marriage could be “stripped” from a same-sex couple when they “travel across state lines” (Obergefell v Hodges, 576 U. S. ____ (2015) page 6)

Using the argument that a State should not be permitted to “strip” a person of their lawful marriage, the applicant might find some support in the long-standing Strasbourg principle that, although Article 12 “lays down that the exercise of this right [to marry] shall be subject to the national laws of the Contracting States”, a State “must not restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired” (Rees v the United Kingdom, 1986, para 50).

Would the Strasbourg Court regard the national laws of the UK, which refuse to recognize a lawful same-sex English marriage as a marriage in Northern Ireland, as imposing a restriction or reduction that impairs the very essence of the right to marry? I would suggest not. The reason for this is because the “very essence” principle is relevant only in relation to the scope of Article 12 which, as the Court says, does not extend to same-sex marriage. In 2010, the Court expressed the principle in these terms: “Article 12 secures the fundamental right of a man and woman to marry … It is subject to national laws of the Contracting States but the limitations thereby introduced must not restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired” (O'Donoghue and Others v the United Kingdom, 2010, para 82). Therefore, if the right to marry relates to marriage between a man and a woman then any restriction or reduction placed on same-sex marriage by national laws would not impair that right.

Another problem for the applicant to contend with is the Strasbourg Court’s comfort with a State depriving a couple of their legal marriage based on the fact that the State does not wish to recognize a same-sex marriage. For instance, the Court declared inadmissible a complaint by a legally married couple who were required to end their different-sex marriage (and transform it into a same-sex civil partnership, if they wished) because one of the couple wanted legal recognition for their gender reassignment. Requiring them to end their marriage because the State did not recognize same-sex marriage was, the couple said, a violation of Article 12 because it impaired the very essence of their right to marry and, importantly, remain married. The Court rejected this complaint on the grounds that Article 12 does not protect same-sex marriage (Parry v the United Kingdom, 2006; see also Hämäläinen v Finland2014).

The Court would, I believe, reach a similar conclusion in respect of an English same-sex marriage being transformed into a civil partnership in Northern Ireland against the will of the couple. This is because the Court would likely say that when the national law of the State (the law of England of Wales) provided same-sex couples with the opportunity to marry it did not create a right for same-sex couples to marry under Article 12 of the Convention. As the High Court of Northern Ireland concluded, such a right does not exist in any legal sense. Therefore, requiring a legally married same-sex couple to have their marriage treated as a civil partnership in Northern Ireland does not violate that couple’s human rights.

Moreover, the fact that the UK Parliament explicitly legislated in the Marriage (Same Sex Couples) Act 2013 to require English same-sex marriages to be recognized as civil partnerships in Northern Ireland would probably not be taken by the Strasbourg Court as a negative. On the contrary, the Court’s current position is that same-sex couples should be provided with “a specific legal framework providing for the recognition and protection of their same-sex unions” other than marriage (Oliari and Others v Italy, 2015, para 185). The Court would likely regard the UK as having done a very “good” thing in ensuring that English same-sex marriages are recognized as civil partnerships in Northern Ireland.

For these reasons, if considered today, I think the Strasbourg Court would reject a complaint against the UK for not recognizing a lawful same-sex English marriage in Northern Ireland.

Should the Northern Ireland cases go to Strasbourg?

The fact that complaints may appear likely to fail in Strasbourg should not necessarily deter applicants from making them. When Jeffrey Dudgeon MBE went to Strasbourg to challenge the criminalization of male same-sex sexual acts in Northern Ireland in the mid 1970s (when such acts had been partially decriminalized in England and Wales) Strasbourg had been rejecting similar complaints for over two decades. In Jeffrey Dudgeon’s case, the time was right for Strasbourg to fundamentally change its mind on this issue. As a consequence, Jeffrey Dudgeon achieved a change in the law in Northern Ireland in much the same way that those who may go to Strasbourg about marriage discrimination in Northern Ireland would like to.

The jurisprudence of the Strasbourg Court is always subject to evolution and its jurisprudence on same-sex marriage is no exception. Although the Court would probably reject a complaint about marriage discrimination in Northern Ireland today, it may not do so in the future. If same-sex marriage has not been introduced in Northern Ireland by virtue of a UK Supreme Court judgment, by the UK Parliament legislating directly at Northern Ireland, or by the Northern Ireland Assembly legislating itself, then, because time will have passed, the Strasbourg Court may be in a position to change its mind on same-sex marriage. Judges Spano and Bianku explicitly indicated in 2016 that “things may change” in Strasbourg on same-sex marriage (Taddeucci and McCall v Italy, 2016) and, perhaps, such a change may come in time for a Northern Ireland case to be successful.

One thing is certain: the Strasbourg Court will eventually change its mind on the issue of same-sex marriage. As this short film shows, although it often takes a very long time for Strasbourg to recognize the human rights of lesbians and gay men, it does come around on most issues in the end. That is, perhaps, the principal reason for taking complaints to the Strasbourg Court about discrimination based on sexual orientation: even if success is not likely, each complaint keeps the matter before the Court and on its radar. As Mary Simpson, the first woman in the world to make a complaint about sexual orientation discrimination under international human rights law, puts it: “You’ve got to keep chipping away at the paintwork, bit by bit, until you break through.” If a complaint gets to Strasbourg about marriage discrimination in Northern Ireland then such a case will definitely chip away at the paintwork and, perhaps, even break through.