Égalité? Not Quite Yet

In a case brought by a lesbian French couple, the European Court of Human Rights ruled that the European Convention on Human Rights does not obligate member nations to guarantee marriage rights to same-sex couples. The couple hoped that the Court’s ruling in their favor would push France to change the current law, which allows only married couples to adopt children.  Ms. Dubois wanted her civil-partner, Ms. Gas, to be able to adopt Ms. Dubois’ daughter but since their union under French law is not equal to marriage she is unable to do so. The Telegraph reports that the judges said “With regard to married couples, the court considers that in view of the social, personal, and legal consequences of marriage, the applicants’ legal situation could not be said to be comparable to that of married couples,” and went on to add “Where national legislation recognises registered partnerships between same sex, member states should aim to ensure that their legal status and their rights and obligations are equivalent to those of heterosexual couples in a similar situation.” So while there is recognition by the Court that homosexual and heterosexual couples ought to be treated the same under the law, it is more of a theoretical agreement than a practical call for change in member states.

The Court’s decision is not optimal but not everyone thinks that it is a step backward. Seattle Gay News writes that Robert Wintemute, a professor of law at King’s College London, is actually optimistic about the future of gay marriage after this ruling and another one that the Court applied in the French couple’s suit. In 2010 in the case Schalk and Kopf vs. Austria, the judges agreed “that governments may offer same-sex couples equal rights to marriage, but were not required to do so.” That 2010 decision Wintemute thinks may in fact be an advantage in the future and Pink News quotes the Professor saying,

“Although the court ruled that Article 12 of the Convention did not yet impose an obligation on European governments to allow same-sex couples to marry, the court changed its interpretation of Article 12, saying 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,’ and he also noted “When more Council of Europe countries than the current seven (out of 47) allow same-sex couples to marry, the court will be willing to consider ordering all of them to do so. The number of European countries that allow same-sex marriage increased from three in 2005 to seven in 2010, and could double again while this case is pending.”

Whether we subscribe to Wintemute’s positive outlook or not, the battles for equal rights are nowhere near being over. Millions of Europeans who wish to marry their same sex partner will continue to be discriminated against if they live in a nation that has not extended equal marriage rights to homosexuals. The middle ground between preserving marriage as a hyper-traditional model for men and women and opening up to more progressive thinking has been achieved in some places with civil unions, but those are not equal to marriage in most cases. While heterosexual couples can enter those same civil unions if they choose, giving the illusion of equality between homosexuals and heterosexuals, if a heterosexual pair in a civil union wishes to gain all the privileges that come with marriage it can change its status but a homosexual pair cannot.

The inability by homosexuals to do what heterosexuals take for granted is blatantly discriminatory. Currently there are two European countries that are thinking of including homosexual couples in the marriage worthy category. The UK and Denmark both have plans to make marriage for same sex couples a reality. Opponents of equal marriage use various arguments for why allowing gay couples to marry is unthinkable, including being worried that religious institutions will be forced to perform gay marriages against their beliefs or conscience, which then flies in the face of religious freedom. That argument is troubling considering the fact that in various cases heterosexual couples are not allowed to get married inside a religious institution; a Roman-Catholic couple married in the Church and then divorced in civil law, without an approved Church annulment, is not allowed under canon law to re-marry inside the Church again. Since I have personally witnessed more than one case like the one I describe, and as I discussed last week in my post about Denmark’s gay marriage legislation which would give individual clergy the ability to decide on their own whether they want to perform a same sex marriage, the concern over religious freedom is a hollow argument. Religious institutions in democratic countries decide everyday what they will or will not do based on their interpretation of their faith, so gay marriage becoming equal under secular, national law will not change that. In the end, it will undoubtedly be a tough political battle forcing non-compliant and discriminatory member states into a new era of acceptance of homosexual married couples. Gay and lesbian couples that wish to get married continue to have the moral advantage in this fight and will surely prevail in the legal arena as well.

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