THE POSITION OF THE EUROPEAN COURT OF HUMAN RIGHTS ON SAME-SEX MARRIAGE.

Abstract

In Judgement 198/2012 of 6 November, the Spanish Constitutional Court ruled in favour of the constitutionality of Spanish Act 13/2005 of 1 July revising marriage regulations under the Spanish Civil Code and enabling the marriage of persons of the same sex. This issue had already engendered controversy in various countries, and its treatment in law and in the courts had even given rise to a number of pronouncements by the European Court of Human Rights (especially the ECHR's Judgment of 24 June 2010, on Schalk and Kopf v. Austria). It had fallen to the ECHR to decide whether national rules circumscribing matrimony to the marriage of persons of different sexes was or was not in accordance with the right to private and family life, the right to marry and the right to equality, which are recognized as rights belonging to all people in articles 8, 12 and 14, respectively, of the European Convention on Human Rights. This article looks at ECHR case-law concerning the right to marry. The issue is of interest to Spanish legal scholars, because the Spanish Constitutional Court has already had to tackle two issues previously examined and decided on by the ECHR: the need to take evolution into consideration when interpreting marriage and the fundamental right to marry, and the existence or non-existence of alternative ways to protect same-sex partners within the bounds of the Constitution (or, in the case of the European Court of Human Rights, within the bounds of the Convention).