Friday June 25, 2010
European Human Rights Court Rules Countries May Decide on Gay “Marriage” — for Now
By Hilary White
STRASBOURG, June 25, 2010 (LifeSiteNews.com) – In a key ruling yesterday, the European Court of Human Rights (ECHR) upheld an earlier decision by the Austrian Constitutional Court, saying that independent states are under no obligation to implement homosexual “marriage” or civil unions.
At the same time, the European Centre for Law and Justice sounded a note of caution on the ruling, saying that the court’s “careful wording” implies a possible legal acceptance in the near future of a “human right” to recognized same-sex partnerships. The ECHR ruling had said that the question is one of “evolving rights” in which states are “still free” to decide for themselves on the issue.
Nevertheless, Gregor Puppinck, Director of the ECLJ called the decision an “extremely important victory.”
In the case of Schalk And Kopf v. Austria, the ECHR ruled that two homosexuals could not force the Austrian government to call their registered partnership a “marriage.”
The ECHR ruled, “The question whether or not to allow same-sex marriage is left to regulation by the national law of the contracting state.” It also pointed out that Article 12 of the European Convention on Human Rights reserves the right to contract marriage to persons of different sex.
In 2002 the two Austrian men at the center of the case, Horst Michael Schalk and Johan Franz Kopf, requested that the Vienna Municipal Office give them the papers for a marriage. When the office refused based on the fact that same-sex “marriage” was not legal, the two men appealed to the Vienna Regional Governor, who also refused.
The two men then launched a constitutional challenge, claiming that the decision had been a violation of their right to respect for private and family life and of the principle of non-discrimination. But the Austrian Constitutional Court ruled that the law did not require “that the concept of marriage as being geared to the fundamental possibility of parenthood should be extended to relationships of a different kind.” That ruling cited a previous ECHR ruling that the restriction of marriage to this “traditional” concept was “objectively justified.”
The two men then complained to the ECHR that they were “discriminated against” because the state “denied the possibility to marry or to have their relationship otherwise recognised by law.”
Austria’s Civil Code states that a marriage is contracted when “two persons of opposite sex declare their lawful intention to live together in indissoluble matrimony, to beget and raise children and to support each other.” The ECHR ruled that in light of this law there had been no violation of the two men’s human rights. On the issue of discrimination the court was divided 4-3, holding that Austria did not discriminate.
Early this year, Austria implemented legally recognized registered partnerships that are available to same-sex partners, but maintains its legal definition of marriage as being between one man and one woman.
The International Lesbian and Gay Association (ILGA), which was granted intervener status by the court, while expressing “disappointment” over the decision, said it “reflects an emerging European consensus” on the acceptability of homosexual relationships.
ILGA’s Martin K.I. Christensen said, “As more and more countries provide legal recognition for same-sex partners, Europe as a whole is gradually moving towards full equality for same-sex families.”
“We believe the Court made various important statements which will eventually serve to advance legal rights for same-sex families. We hope that in a near future the Court will more forward in recognising equal enjoyment of the rights guaranteed by the European Convention on Human Rights by same-sex couples.”