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STRASBOURG/ No human right to same-sex marriage

July Tue 29, 2014

Infophoto  Infophoto

There is no human right to a same-sex marriage, human rights law does not require countries to “grant access to marriage to same-sex couples”, and the state acts lawfully in seeking to defend the traditional understanding of marriage as between a man and a woman, according to a ruling by Europe’s highest human-rights court last week.

The judgement handed down by the European Court of Human Rights (ECHR) at Strasbourg both reiterates and reinforces a previous 2012 ruling which made clear that same-sex couples did not have a human right to enter marriage. Strasbourg’s consistent view is noteworthy because it has a clear remit to uphold anti-discrimination and human rights laws, and vigorously pursues the rights of gay among other minority groups. Last week’s ruling is the final stage of a case first brought in Finland, where, uniquely in Scandinavia, there is no same-sex marriage (SSM) law, but where gay couples can access legal privileges through a civil union law similar to the UK’s 2004 civil partnership scheme.

The case involved a man, Heli Hämäläinen, who fathered a child with his wife of ten years, then (in 2009) had gender-reassignment surgery to acquire the anatomy of a woman. When she (as she regards herself) changed her first names in June 2006, she was told that she could not be registered as female while remaining married unless her wife consented to the marriage being turned into a civil partnership, which she refused to do; or unless the couple divorced, which they said they would not do.

Heli Hämäläinen took her case to Strasbourg after a six-year battle in the Finnish courts. She argued that her religious beliefs prevented her from seeking a divorce and that a civil union did not offer the same as marriage in terms of benefits and security to them and their child. The judges found however that: “it was not disproportionate to require the conversion of a marriage into a registered partnership as a precondition to legal recognition of an acquired gender, as that was a genuine option which provided legal protection for same-sex couples that was almost identical to that of marriage.

Significantly, the judges also said that the European Convention on Human Rights cannot be interpreted “as imposing an obligation on Contracting States to grant same-sex couples access to marriage”. Only ten of the 47 signatories to the Convention have legalised SSM.



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