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 (PDF here) 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.
The Court had previously found no right to same-sex marriage exists in the Convention. This time it went further and explicitly stated that Article 12 of the Convention (dealing with marriage)
enshrines the traditional concept of marriage as being between a man and a woman [and] cannot be construed as imposing an obligation on the Contracting States to grant access to marriage to same-sex couples (§ 96).
The ruling is not, on the face of it, surprising, as all the major charters of human rights in the world recognize marriage as a human right, but only between a man and a woman. Yet it seems shocking, because it flies in the face of the prevailing rhetoric favouring SSM — which asserts, without reason, that marriage redefinition involves the recognition of a long-suppressed human right.
Strasbourg has rightly read its human rights charter as starting that, while a state has the power to redefine marriage, it cannot create a human right by fiat (human rights should be recognized, not created, by the law of states.) The constant understanding of marriage as a conjugal institution based on sexual complementarity is what lies behind the universal human right to enter it, a right that can only be exercised by those able (an adult man and a woman, who are free to do so, and capable of consenting to its requirements) to fulfil its conditions.
This unambiguous clarification is also important for those who opposed, and continue to oppose, the UK government’s redefinition of marriage rushed through Parliament last year. The refuseniks were told at the time, and are increasingly told, that their opposition reflects “homophobia” or that they don’t respect gay peoples’ “human rights”. In fact, as the eminent judges at Strasbourg have made clear, their opposition upholds the human rights spelled out in the great international charters which laid the postwar foundation of western pluralistic democracies.