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No right to same-sex marriage, European judges rule

28 June 2010

European human rights law does not require that a same-sex couple have the right to marry, the European Court of Human Rights has ruled.

In a new judgment, Schalk and Kopf v Austria, the applicants complained that they were discriminated against because they were denied the possibility to marry or to have their relationship otherwise recognised by law.

The application was made in 2004 and Austria introduced for the first time, from 1 January this year, a Registered Partnership Act which provided same-sex couples with a formal mechanism for recognising and giving legal effect to their relationships.

The applicants argued that the Human Rights Convention was a living instrument which was to be interpreted in present-day conditions, and article 12 (right tp marry) should in present-day conditions be read as granting same-sex couples access to marriage in national laws.

The court however noted that there was no European consensus regarding same-sex marriage, as only six out of 47 Convention states allow same-sex marriage. Another 13 have passed legislation such as the UK's Civil Partnership Act.

It added that "marriage has deep-rooted social and cultural connotations which may differ largely from one society to another. The court reiterates that it 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". It therefore concluded that article 12 did not impose the obligation contended for.

By a 4-3 majority the judges also rejected the claim that the applicants were discriminated against because no law existed by which they could have their relationship legally recognised prior to 2010.

Click here to view the court's judgment.

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