In seven of the Contracting States of the ECHR same-sex couples now have the right to marry: the Netherlands, Belgium, Spain, Norway, Sweden, Iceland and Portugal. In many other Contracting States, including the United Kingdom, Austria and most recently the Republic of Ireland, at least another formalised union such as a civil/registered partnership is open to same-sex couples. However, in roughly half of the Contracting States no comprehensive legal recognition of same-sex couples exists. Indeed, such recognition is often vehemently opposed, particularly in Eastern Europe. While there is a clear trend towards recognising same-sex unions in Europe and beyond, the legal position of same-sex couples is therefore far from equal in the Contracting States.

In Schalk and Kopf v. Austria (application no. 30141/04) the applicants, Mr Schalk and Mr Kopf, had requested the competent Austrian authorities to proceed with the formalities to enable them to contract marriage. This request was denied, the reason being that as they were both male, they lacked the capacity for contracting marriage under Austrian law. The Austrian courts upheld this decision, and the matter was ultimately brought before the European Court of Human Rights to decide whether a same-sex couple had the right to marry under the ECHR.

As Sir Mark Potter rightly pointed out in Wilkinson v. Kitzinger [2006] EWHC 2022 (Fam) at [44], the ECtHR “has consistently declared itself to be slow to trespass on areas of social, political and religious controversy, where a wide variety of national and cultural traditions are in play and different political and legal choices have been made by the members of the Council of Europe”. Indeed, the ECHR is an international instrument which provides “a floor of rights but not a ceiling” (cf. Wikely (2006) 122 L.Q.R. 542; Scherpe [2007] C.F.L.Q. 390), the floor being a (more or less broad) consensus among Contracting States, defining the minimum protection that has to be provided. As outlined above, while several jurisdictions now allow same-sex marriage, there certainly is no broad consensus on this amongst the Contracting States. Therefore it was not surprising that in Schalk and Kopf the ECtHR unanimously held that while Article 12 ECHR does not preclude same-sex-marriages, it does not oblige the Contracting States to allow such marriages.

The applicants nevertheless won a different, perhaps even more important, victory concerning Article 8 ECHR: in Schalk and Kopf the ECtHR reversed its previous position, stated in Mata Estevez v. Spain (application no. 56501/00) and relied upon in Wilkinson v. Kitzinger, after analysing the growing legal recognition of same-sex couples in many Contracting States:

The inclusion of same-sex couples under the right to respect for family life in Article 8 had been hinted at in Burden v. United Kingdom (Grand Chamber, application no. 13378/05) and Courten v. United Kingdom (application no. 4479/06) and will have far-reaching consequences. Crucially, this also means that the same-sex couples now are protected from discrimination by Article 14 in conjunction with Article 8 ECHR. Discussions whether or not same-sex relationships are within the “ambit” of Article 8 (see for example M v. Secretary of State for Work and Pensions [2006] UKHL 11) thankfully are now a thing of the past. Any differential treatment of opposite- and same-sex couples now requires an objective justification, and – as been consistently held by the ECtHR (see e.g. Karner v. Austria (application no. 40016/98) at [37]) – differential treatment because of sexual orientation “requires particularly serious reasons by way of justification”. However, because Article 12 ECHR does not impose an obligation to allow same-sex marriage, the Court held by a majority of 4:3 that neither could Article 14 taken in conjunction with Article 8 ECHR – without much further reasoning. The joint dissenting opinion by Judges Rozakis, Spielmann and Jebens on this point is well worth reading and might point towards future judicial development.

While in Schalk and Kopf the ECtHR expressly stated, at [103]–[104], that it was not called upon in this case to decide the matter, it seems reasonably clear from the context that the absence of any form of legal recognition of same-sex couples constitutes a breach of convention rights. Hence we can expect a rapid development and future cases in Strasbourg since so far only about half of the Contracting States have comprehensive legislative schemes for same-sex couples. Considering differential treatment where such schemes are in place, the ECtHR at [108] held that in principle the Contracting States enjoy a “certain” (as opposed to “wide”) margin of appreciation as to the whether the rights and duties conferred should be identical to those available to opposite-sex couples. The ECtHR itself has identified three “main categories” of legal consequences at [30]–[34] of schemes for same-sex couples: “material” consequences including taxes, health insurance, social security, pensions, inheritance rights and the equivalent of ancillary relief; “parental” consequences such as the right to adopt and artificial insemination; and “other” consequences, for example use of the partner's surname, residence permits, citizenship and the right to succeed as a tenant etc. The Court observed that while same-sex and different-sex couples appear to be treated equally regarding “material” consequences in most Contracting States where legislative schemes were enacted, there are still significant differences concerning “parental” consequences. In any event, given the necessity for particularly serious reasons for differential treatment, the rights and duties of couples of the same and the opposite sex presumably need to be equal in most areas of law in order for the Contracting State to comply with the ECHR.