JURIST Guest Columnist Amaury A. Reyes-Torres of the Iberoamerican University (UNIBE) [Spanish] discusses the legal developments of same-sex marriage in Europe…

Quite recently, the European Court of Human Rights (ECtHR) rendered a landmark decision in the protection of rights of same-sex couples under the European Convention of Human Rights (ECHR): Oliari and Others v. Italy. However, it is nothing more than the logical consequence of Schalk & Kopf v. Austria and Hämäläien v. Finland. In other words, the ECtHR itself and all of us who are following the footsteps of the court on the human rights protections of same-sex couples saw this decision coming.

The question before the court was whether Italy had complied with its positive obligations under the convention when same-sex couples do not have any legal protections in the form of marriage or civil partnerships. Having analyzed the arguments of the applicants and respondents, the court held that, since in Italy same-sex couples lack any legal recognition and protection as couples, it violated the ECHR.

The court began its inquiry by recalling the breadth of Article 8 ECHR [PDF] in relation to same-sex couples and the right to private and family life. The court recalled that same-sex couples in a de facto partnership falls within the limb of the right to a family and private life. Article 8, according to the court, may impose positive obligations on the state to enforce the guarantees of the convention to respect private and family life that favor same sex couples.

The petitioners claimed that Italy had not fulfilled its obligation under the convention by failing to introduce proper legislation to regulate same-sex couples’ partnerships. The petitioners also held that even the Italian Constitutional Court affirmed that the State has an obligation to so, a fact that was also noted by the court. The applicants held as well that,

the recognition in law of one’s family life and status was crucial for the existence and well-being of an individual and for his or her dignity. In the absence of marriage the State should, at least, give access to a recognised (sic) union by means of a solemn juridical institution, based on a public commitment and capable of offering them legal certainty.

The government, on the other hand, considered that the convention does not oblige states to assume a legal obligation regarding same-sex couples and the states enjoy a wide margin of appreciation for this topic.

One might be motivated to dismiss the complaints based on the holdings of Schalk & Kopf v. Austria and Hämäläien v. Finland, but it is not possible. The court correctly distinguished Oliari from Schalk & Kopf and Hämäläien in several points. The most important difference refers to the fact that this case was not a case about marriage as protected in Article 12 of the ECHR [PDF]. In addition to this, in those cases the court observed that there were existing legal institutions that could provide legal guarantees for same-sex couples on similar grounds as marriage. For the court this was a sufficient guarantee for same-sex couples seeking recognition and legal protection, due to the view that there is no obligation on behalf of the members of the European Council to extend the access to marriage to same-sex couples.

Following this train of thought, and recalling prior judgments such as Vallianatos et al v. Greece, the court considered that same-sex couples are just as capable as opposite-sex couples. The court reiterates that it has already held that same-sex couples are just as capable as different-sex couples of entering into stable, committed relationships and that they are in a relevantly similar situation to a different-sex couple as regards their need for legal recognition and protection of their relationship (internal quotations omitted). It follows that the court has already acknowledged that same-sex couples are in need of legal recognition and protection of their relationship.

From this point of view, since same-sex couples are just as capable as opposite-sex couples, both couples are indeed in the same need for legal recognition and protection in order to legitimatize their unions. So under the convention, the state has a positive obligation to make these possible because by affording the appropriate recognition and protection is how same-sex couples’ right to private and family life is respected. In the case under examination, the court concluded that the lack of any legal recognition and protection for same-sex couples under Italian domestic law is a violation of Article 8 ECHR. In the words of the court,

In view of the above considerations, the court considers that in the absence of marriage, same-sex couples like the applicants have a particular interest in obtaining the option of entering into a form of civil union or registered partnership, since this would be the most appropriate way in which they could have their relationship legally recognised (sic) and which would guarantee them the relevant protection—in the form of core rights relevant to a couple in a stable and committed relationship—without unnecessary hindrance. Further, the court has already held that such civil partnerships have an intrinsic value for persons in the applicants’ position, irrespective of the legal effects, however narrow or extensive, that they would produce…

This recognition would further bring a sense of legitimacy to same-sex couples.

It is in fact remarkable the emphasis made by the court on the effectiveness that the recognition and protections must entail for the benefit of same-sex couples. The court properly observed how in Italy, in spite of the lack of particular legal guarantees in favor of same-sex couples, there were some contractual arrangements available for the couple, and some domestic courts are doing a case-by-case assessment to grant some rights and legal effects to this unions, which does not tackle the uncertainty of this legal instruments. And the existing system of registry available in some places for same-sex couples is only a symbolic one with no effect of granting the couples any official civil status.

The court found this as insufficient to recognize and protect the unions by same-sex couples. It called the attention of the court the constant need of recurrence to the judicial boy in order to determine the rights and interests of same-sex couples, a situation that is aggravated by how overburdened the Italian judicial system is. All of these aspects do nothing more to contribute to a state of uncertainty that considerably affects same-sex couples, an uncertainty produced also by a legal system that is totally disconnected from a social need that is the interest of entering in a sort of legal institution that would legitimatize and protect same-sex unions. In the view of the court, the existing legislation is limited to particular circumstances and its effect does not tantamount to a full legal recognition and protection to same-sex couples.

In another hand, the holding in Oliari helps to dissipate the continuous and erroneous interpretations that limited the protection of same-sex unions under the convention. Now, Schalk & Kopf has been clarified; since in Austria there exists a civil partnership that offers substantial protections to same-sex couples just like marriage does, there is no obligation under the convention to recognize marriage. The same thing happens in Hämäläien, regardless of the other problems arising from this decision—especially in relation to Christie Goodwin v. United Kingdom—the reason why the court did not hold a violation to the convention was that in Finland there exists an institution that offers similar legal protections to same-sex unions. By reading these cases together, we may conclude that even if the convention does not grant a general right to marry, it mandates the legal recognition and protection to same-sex unions. This is the central holding of Oliari.

The case law regarding same-sex couples and their unions is simple: it is up to the states to decide whether or not to extend the access to marriage to same-sex couples. But I am not quite sure about whether the court is aware of the consequences of this judgment in the future. Now, the fact that same-sex couples cannot be deprived of legal recognitions and protections will add another element to the discussion on same-sex couples rights under the convention from an equal protection account.

In my view, Oliari marks the first inevitable step for the court to reconsider Schalk & Kopf v. Austria, which —as I wrote elsewhere— was wrongly decided. Since states are now obliged under the convention to offer similar legal protections to same-sex couples as the one enjoyed by opposite-sex couples, the question before us will be if there is really any difference between these types of sex couples. This question might be analyzed under Article 8 and in conjunction with Article 14 ECHR [PDF]. But also, if the respondent State had already adopted Protocol 12 on the General Prohibition of Discrimination, there might be a more powerful argument for same-sex couples to argue for a right to marry under the Convention.

What we are talking about is whether or not is permissible, under the convention, the existence of a “separate and equal” doctrine when it comes to opposite-sex and same-sex unions and the right to marry. The opportunity to tackle that question has been presented in two recent petitions Hörmann and Moser v. Austria and Dietz and Suttasom v. Austria currently pending before the court.

Sadly, it is becoming difficult to see where the court will shift on these issues related to same-sex couples. Truth be told, the ECtHR has not been up to the task in the questions of equal marriage, but it is building a path by which it might lead to an inevitable answer to bring same-sex couples to an equal stance with respect to the opposite-sex couples. Maybe, Schalk & Kopf was a necessary ‘evil’ to apprehend where the European consensus is going, how States are reacting and also how we feel about marriage and civil partnerships. Oliari is now a first step in a long and inevitable path to equal marriage and the court is running out of changes to keep dodging that bullet.

Amaury A. Reyes-Torres is a lecturer on Constitutional Law and Comparative Constitutional Law at Iberoamerican University (UNIBE), Dominican Republic. He is currently pursuing an LLM in International Law and Justice at Fordham University School of Law School

Suggested citation: Amaury Reyes-Torres, Oliari v. Italy: The First Step To Equal Marriage In Europe, JURIST – Professional Commentary, August 17, 2015, http://jurist.org/hotline/2015/08/amaury-reyes-torres-equal-marriage.php