Article 9 - Right to marry and right to found a family
1) The case originated in an application (no. 30141/04) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Austrian nationals, Mr Horst Michael Schalk and Mr Johan Franz Kopf (“the applicants”), on 5 August 2004.
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3) The applicants alleged in particular, that they were discriminated against as, being a same-sex couple, they were denied the possibility to marry or to have their relationship otherwise recognised by law.
7) The applicants were born in 1962 and 1960 respectively. They are a same-sex couple living in Vienna.
8) On 10 September 2002 the applicants requested the Office for Matters of Personal Status (Standesamt) to proceed with the formalities to enable them to contract marriage.
9) By a decision of 20 December 2002, the Vienna Municipal Office (Magistrat) refused the applicants’ request. Referring to Article 44 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch), it held that marriage could only be contracted between two persons of opposite sex. According to constant case-law, a marriage concluded by two persons of the same sex was null and void. Since the applicants were two men, they lacked the capacity to contract marriage.
10) The applicants lodged an appeal with the Vienna Regional Governor (Landeshauptmann), but to no avail. In his decision of 11 April 2003, the Governor confirmed the Municipal Office’s legal view. In addition, he referred to the Administrative Court’s case-law according to which it constituted an impediment to marriage if the two persons concerned were of the same sex. Moreover, Article 12 of the Convention reserved the right to contract marriage to persons of different sex.
11) In a constitutional complaint, the applicants alleged that the legal impossibility for them to marry constituted a violation of their right to respect for private and family life and of the principle of non-discrimination. They argued that the notion of marriage had evolved since the entry into force of the Civil Code in 1812. In particular, the procreation and education of children no longer formed an integral part of marriage. According to present-day perceptions, marriage was rather a permanent union encompassing all aspects of life. There was no objective justification for excluding same-sex couples from concluding marriage, all the more so since the European Court of Human Rights had acknowledged that differences based on sexual orientation required particularly weighty reasons by way of justification. Other European countries either allowed homosexual marriage or had otherwise amended their legislation in order to give equal status to same-sex partnerships.
12) Lastly, the applicants alleged a breach of their right to the peaceful enjoyment of their possessions. They argued that in the event that one partner in a homosexual couple died, the other was discriminated against since he would be in a much less favourable position under tax law than the surviving partner in a married couple.
13) On 12 December 2003 the Constitutional Court (Verfassungsgerichtshof) dismissed the applicants’ complaint.
Paragraphs referring to the EU Charter in the Court judgment:
52) In Christine Goodwin (cited above, §§ 100-04) the Court departed from that case-law: it considered that the terms used by Article 12 which referred to the right of a man and woman to marry no longer had to be understood as determining gender by purely biological criteria. In that context, the Court noted that there had been major social changes in the institution of marriage since the adoption of the Convention. Furthermore, it referred to Article 9 of the Charter, which departed from the wording of Article 12. Finally, the Court noted that there was widespread acceptance of the marriage of transsexuals in their assigned gender. In conclusion, the Court found that the impossibility for a post-operative transsexual to marry in her assigned gender violated Article 12 of the Convention.
60) Turning to the comparison between Article 12 of the Convention and Article 9 of the Charter, the Court has already noted that the latter has deliberately dropped the reference to “men and women” (see Christine Goodwin, cited above, § 100). The Commentary of the Charter, which became legally binding in December 2009, confirms that Article 9 is meant to be broader in scope than the corresponding Articles in other human rights instruments (see paragraph 25 above). At the same time, the reference to domestic law reflects the diversity of national regulations, which range from allowing same-sex marriage to explicitly forbidding it. By referring to national law, Article 9 of the Charter leaves the decision whether or not to allow same-sex marriage to the States. In the words of the Commentary:
“... it may be argued that there is no obstacle to recognise same-sex relationships in the context of marriage. There is, however, no explicit requirement that domestic laws should facilitate such marriages.”
61) Regard being had to Article 9 of the Charter, therefore, the Court would no longer consider that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two persons of the opposite sex. Consequently, it cannot be said that Article 12 is inapplicable to the applicants’ complaint. However, as matters stand, the question whether or not to allow same-sex marriage is left to regulation by the national law of the Contracting State.
Paragraphs referring to the EU Charter in the concurring Opinion of Judge Malinverni joined by Judge Kovler (translation):
2. Nor can I accept the following statement:
“[r]egard being had to Article 9 of the Charter ... the Court would no longer consider that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two persons of the opposite sex. Consequently, it cannot be said that Article 12 is inapplicable to the applicants’ complaint.” (paragraph 61 of the judgment)
On the contrary, I consider that Article 12 is inapplicable to persons of the same sex.
Admittedly, in guaranteeing the right to marry, Article 9 of the Charter of Fundamental Rights of the European Union (“the Charter”) deliberately omitted any reference to men and women, since it provides that “[t]he right to marry and to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights”.
In my opinion, however, no inferences can be drawn from this as regards the interpretation of Article 12 of the Convention.
The Commentary of the Charter does indeed confirm that the drafters of Article 9 intended it to be broader in scope than the corresponding Articles in other international treaties. However, it should not be forgotten that Article 9 of the Charter guarantees the right to marry and to found a family “in accordance with the national laws governing the exercise of these rights”.
By referring in this way to the relevant domestic legislation, Article 9 of the Charter simply leaves it to States to decide whether they wish to afford homosexual couples the right to marry. However, as the Commentary quite rightly points out, “there is no obstacle to recognise same-sex relationships in the context of marriage. There is, however, no explicit requirement that domestic laws should facilitate such marriages”.
In my view, Article 9 of the Charter should therefore have no bearing on the interpretation of Article 12 of the Convention as conferring a right to marry only on persons of different sex.
It is true that the Court has already referred to Article 9 of the Charter in its Christine Goodwin judgment (cited above, § 100). However, in that case the Court considered whether the fact that domestic law took into account, for the purposes of eligibility for marriage, the sex registered at birth, and not the sex acquired following gender reassignment surgery, was a limitation impairing the very essence of the right to marry. After her operation, the applicant lived as a woman and wished to marry a man. The case did not therefore concern marriage between persons of the same sex.
