Do the Rights to Marriage and Equality Require States to Recognise Same-Sex Marriage?

Schalk and Kopf v Austria [2010] 30141/04 (24 June 2010)

Does the right to marry, and the ‘family unit’, extend to same-sex couples?  The European Court of Human Rights recent decision in Schalk and Kopf v Austria considers these issues.


Under Austrian domestic law, a marriage concluded by a same-sex couple is null and void.  In 2002, Schalk and Kopf, a same-sex couple, applied to the Vienna Municipal Office to marry, but their request was refused.  They ultimately applied to the European Court of Human Rights to challenge the decision, founding their application arts 12 and 14 of the European Convention of Human Rights.


Violation of the right to marry

Article 12 of the Convention guarantees the right to marry and to found a family to ‘[m]en and women of marriageable age … according to the national laws governing the exercise of this right’.  Relying on the Court’s case-law, which established that the Convention was a ‘living instrument which is to be interpreted in present-day conditions’, the applicants argued that the right should be read as one that applied to same-sex couples.

The Court disagreed, holding that the Convention did not impose an obligation to allow same-sex couples to marry.  While the right enshrined in art 12 was not confined to opposite-sex couples, the issue of whether to allow same-sex couples to marry was reserved for regulation by contracting states.

Noting that contracting states were ‘best placed to assess and respond to the needs of society’, the Court emphasised its reluctance to substitute its own judgment in the place of contracting states.  While the institution of marriage had undergone ‘major social changes’ since the Convention was adopted, it had ‘deep-rooted social and cultural connotations’ that differ largely between societies.  With only six of the forty-seven contracting states allowing same-sex marriage, the Court thought there was ‘no European consensus’ on the issue.

Violation of the right to respect for private and family right on the basis of sexual orientation

The Convention also guarantees:

  • the right to respect for private and family life under art 8, a right that may only be limited ‘in accordance with the law and [as] necessary in a democratic society’ for certain purposes; and
  • the enjoyment of the rights and freedoms secured by the Convention without discrimination under art 14.

Relying on art 14 (taken in conjunction with art 8), the applicants alleged that, by being denied access to marriage, they had been unlawfully discriminated against on based on their sexual orientation.

Importantly, the Court’s decision recognises for the first time that the notion of ‘family life’ under art 8 extends to same-sex partners living in a de facto relationship, ‘just as the relationship of a different-sex couple in the same situation would’.

However, the Court concluded that there was no obligation to grant access to marriage to same-sex couples based on art 14.  Because the Convention must be read as a whole, and its articles construed in harmony with one another, given the conclusion that art 12 did not impose an obligation to grant access to marriage to same sex-couples, it could not be implied from art 14 (taken in conjunction with art 8).

The applicants also alleged that they had been discriminated against on the basis of their sexual orientation because (at the time of the appeal was filed in 2002) they did not have any other right to legal recognition of their relationship.

Subsequent changes in Austrian domestic law changed the complexion of the applicants’ claim.  After their application was lodged, but before it was heard, the Austrian Registered Partnerships Act came into force.  It granted same-sex couples the right to enter into ‘registered partnerships’, and implemented a range of reforms to provide registered partners with many (but not all) of the same legal rights as married couples.  The differences noted by the Court included that:

  • registered partnerships were concluded in different offices to marriages;
  • registered partners could take on a common ‘last name’, whereas married couples had a common ‘family name’; and
  • registered partners could not adopt children, nor access artificial insemination.

While the Court acknowledged that there was an ‘emerging European consensus towards legal recognition of same-sex couples’, it was an area to be regarded ‘as one of evolving rights with no established consensus’.  Accordingly, contracting parties enjoy a margin of appreciation in the timing of the introduction of legislative changes, and the Austrian Government could not be reproached.

Despite noting that the ‘differences based on sexual orientation require particularly serious reasons by way of justification’, the Court held the contracting parties enjoyed a margin of appreciation under art 14 about the content of recognition granted to same-sex couples.  The Austrian Government had not exceeded the margin in its choice of rights and obligations conferred by registered partnership.  The differences in parental rights ‘correspond[ed] … to the trend in other member States’ and, in any event, because the applicants had not claimed that they were directly affected by the differences, the Court declined to examine them in detail.

Relevance to the Victorian Charter

Like the Convention, the Victorian Charter also affords protections to families, protecting persons from unlawful or arbitrary interference with their family (s 13) and acknowledging that families ‘are the fundamental group unit of society and are entitled to be protected’ (s 17).  At the very least, the decision is likely to be influential in interpreting what constitutes a ‘family’ under the Victorian Charter.

The Victorian Government has in recent times introduced a range of reforms intended to grant to same-sex couples the same legal rights available to other couples under state law (see the Statute Law Amendment (Relationships) Act 2001 and the Statute Law Further Amendment (Relationships) Act 2001) and to allow same-sex partners to register their relationship (see the Relationships Act 2008).

For now, the more contentious issue of access to marriage by same-sex couples cannot be resolved at the state (or territory) level in Australia.  With the Howard Government’s 2004 amendments to the Marriage Act 1961 reserving marriage to ‘a man and a woman to the exclusion of all others’, s 109 of the Constitution (which renders invalid any state law that is inconsistent with a Commonwealth law) looms large.  The issue presents another example of the constraints of state and territory-based human rights protections in the Australian federal compact.

The decision is at

Samuel Porter, Solicitor, Mallesons Stephen Jaques Human Rights Law Group