.png)
In December 2023, the European Court of Human Rights (ECtHR) ruled on the latest in a run of same-sex relationship recognition cases. The case, Przybyszewska and others v Poland, raised the failure of Poland to provide any avenue to legal recognition for same-sex couples, whether through marriage or through some form of civil partnership. The ECtHR, beginning in Oliari and others v Italy in 2015 and clarified in Fedotova and others v Russia earlier in 2023, has required that State Parties provide some form of legal recognition of same-sex relationships, putting an emphasis on the intrinsic value of civil partnerships and legal recognition of some form to individuals, "irrespective of the legal effects, however narrow or extensive, that [it] would produce" (Oliari, para. 174).
In Przybyszewska and others, the problem raised before the ECtHR was the complete absence of legal recognition for same-sex couples within Polish law. The only form of legal recognition available in Poland was marriage (see Przybyszewska and others, Relevant Domestic Law and Practice and specifically Polish Constitution, Article 18), and despite multiple couples attempting to enter into marriages in Poland, the local courts refused to recognize the right of same-sex couples to marry (Przybyszewska and others, Relevant Domestic Law and Practice F.). Given the ECtHR's prior case law, such as Fedotova and others and Buhuceanu and others v Romania, the outcome of the case comes as no surprise. In Fedotova and others, decided in January 2023, the ECtHR recognized that the "margin of appreciation is significantly reduced when it comes to affording same-sex couples the possibility of legal recognition" (Fedotova, para. 187), and found that the complete lack of legal recognition in Russia constituted a violation of Article 8 ECHR (Fedotova, paras. 224-225). Additionally, later in 2023 the ECtHR found that a similar state of affairs in Romania (complete lack of legal recognition of same-sex couples) led to a violation of Article 8 ECHR (Buhuceanu, paras. 83-84). Przybyszewska and others was no different. Poland failed to provide a legal framework for same-sex couples to obtain legal recognition, and, consequently, the ECtHR again found a violation of Article 8 ECHR (Przybyszewska, paras. 123-124).
These judgments, including Przybyszewska and others, are certainly victories for LGBTQ+ advocates, especially in countries the ECtHR has ruled against for failing to provide any form of legal recognition to same-sex couples like Russia, Romania, and Poland. Yet, for an international human rights tribunal, the ECtHR's current case law leaves something to be desired. As noted by Giulio Fedele following Buhuceanu and others, "it seems that the Court (perhaps inadvertently) chose to focus only on the practical perspective of legal recognition … while ignoring the whole ‘intrinsic value’ narrative that was used in previous case law to highlight that same-sex couples have an interest in being recognised per se" (Fedele). This trend which Fedele observed, and as this blog post will demonstrate, has seemingly not abated, with the ECtHR taking a similar approach in Przybyszewska and others. Additionally, Przybyszewska and others and its language highlights a broader issue with the slow pace the ECtHR has taken towards evolving its case law to create as equal and nondiscriminatory a situation as State Parties will allow, something this blog post will also address.
Intrinsic or Practical Justification for Legal Recognition of Same-Sex Couples?
The most recent case, Przybyszewska and others, demonstrates a similar trend to that in Buhuceanu and others of emphasizing the practical, as opposed to the intrinsic, basis for requiring State Parties legally recognize same-sex couples. In justifying its finding against Poland in Przybyszewska and others, the ECtHR concluded that "in the absence of official recognition … same-sex partners are unable to regulate fundamental aspects of their life, such as those concerning property, maintenance, taxation, and inheritance, as an officially recognized couple" (Przybyszewska, para. 76). The spotlight rests squarely on the practical rights of same-sex couples with the earlier language based on the intrinsic value of such recognition receiving but a passing reference from the ECtHR. Even where it employed such language in the judgment, the ECtHR limits the extent of that intrinsic value to "partnerships constituting an officially recognised alternative to marriage" (Przybyszewska, para. 109).
The ECtHR's newfound preoccupation with the practical benefits which legal recognition provides is further demonstrated by its response to the Polish government's claim that private agreements could supplement the protections and rights which would otherwise be available through legal recognition, making such recognition superfluous. The ECtHR could, in theory, respond with a rights-based approach reflecting its previous "intrinsic value" language regarding the innate inequality in and discriminatory nature of forcing same-sex couples to rely on complex webs of private agreements in lieu of established legal recognition. Instead, the ECtHR couched its rejection of that claim in the "finding that such private agreements fail to provide for some basic needs which are fundamental to the regulation of a relationship between a couple in a stable and committed relationship" (emphasis added). The ECtHR placed these "basic needs" front and center in Przybyszewska and others' reasoning, omitting the intrinsic value entirely in contravention to its approach in Oliari and others where it held that there was an "intrinsic value [to civil partnerships]… irrespective of the legal effects, however narrow or extensive, that [it] would produce" (Oliari and others, para. 174).
Not Marriage, So Which Practical Rights?
The circumstance described above of the ECtHR faltering in its intrinsic value rhetoric in favor of emphasizing practical rights also adumbrates the fundamental problem with the current approach taken by the ECtHR to legal recognition of same sex marriage cases. While the linguistic shift may present an alarming directional drift from the ECtHR, the fact is that its case law has long demonstrated a subordination of legal recognition of same-sex couples to formalism and subsidiarity. Since Schalk and Kopf v Austria, the ECtHR has refused to recognize the right of same-sex couples to marry on the basis of the lack of a European consensus (Schalk and Kopf, para. 58; Oliari and others, para. 191). In doing so, the ECtHR perpetuates the fundamentally discriminatory separation of same-sex and opposite-sex couples between two forms of legal recognition (i.e. marriages and civil partnerships). Additionally, the ECtHR has held more recently that the form and content of legal recognition, whatever form it may take, is subjected to a wide margin of appreciation, a standard stated in Fedotova and others and then reiterated in Przybyszewska and others (Fedotova, para. 188; Przybyszewska, para. 101). This means that despite the recent shift in language to focus on the practical effects, the ECtHR has nonetheless left up to the discretion of State Parties just what those practical rights are, the same State Parties the ECtHR has repeatedly needed to rule against for failing to provide even a barren form of legal recognition (see Fedotova and others, Buhuceanu and others, and Przybyszewska and others).
Przybyszewska and others demonstrates the ECtHR's apparent doublespeak on the legal recognition question. Przybyszewska and others contained the listing of rights and obligations which Polish couples missed out on as a consequence of the Polish government's view that same-sex couples could simply arrange their affairs through private agreements (Przybyszewska, paras. 111-114). These lost rights and obligations included “property, maintenance, taxation, and inheritance, as an officially recognised couple" (Przybyszewska, para. 114). Yet, earlier in the judgment, the ECtHR itself had rejected requiring States have a narrow margin of appreciation in what practical content the legal recognition of same-sex couples must have and failed to provide an enumeration, as it always has, of what rights and obligation same-sex couples are entitled to beyond the bare right to recognition (Przybyszewska, para. 101). This doublespeak in Przybyszewska and others demonstrates how the ECtHR has shifted towards a practical viewpoint of rights and obligations as the essence of interest same-sex couples have in legal recognition while simultaneously refusing to extend its case law accordingly to more concretely enumerate which practical rights and obligations form that essence.
The ECtHR, Subsidiarity, and Marriage
The other fundamental problem with the ECtHR's approach to legal recognition cases is that the ECtHR has led itself to consider the acceptable status quo in Europe to be, at best, one of separate but equal, a reality the ECtHR does not even go so far as to require, and one that is nonetheless discriminatory. Separate but equal, a term well known in American law, refers to segregated systems where the only technical discrimination is the segregation itself, but the accommodations are otherwise equal for both groups. The actual equality of separate but equal accommodations, though, is a fiction. As Barbara Cox articulated in her Vermont Law Review article after Vermont promulgated a civil partnership law in 2000, separate but equal is, itself, fundamentally discriminatory. While it may appear equal, it is instead always inherently unequal, creating in and outgroups in society which encourage rather than erode the social barriers responsible for bigotry (Cox, 136-146).
The Inter-American Court of Human Rights (IACtHR) perhaps described such separate institutions for legal recognition best in Advisory Opinion OC-24/17 when it considered that such separate institutions exist for no other purpose "except to draw attention to same-sex couples by the use of a label that indicates a stigmatizing difference or that, at the very least, belittles them". The ECtHR, though, has failed to even require a separate but equal system for legal recognition with equal rights in separate institutions (i.e. marriage and civil partnerships). It has instead created an even more discriminatory separate and unequal system where same-sex couples can be relegated by State Parties to separate institutions for recognition of their relationships, and also receive lesser rights compared to their same-sex counterparts.
The ECtHR in its rhetorical approach only goes so far as to admit the "intrinsic value" at stake only in providing "an officially recognised alternative to marriage" with an undefined number of rights and obligations, as shown in its most case Przybyszewska and others (Przybyszewska, para. 109). The intrinsic value of ensuring equal access to marriage for same and opposite-sex couples remains unsaid. Reasonably, a human rights tribunal should move its constituent State Parties away from inherently discriminatory structures, like separating same-sex couples and opposite-sex couples into different forms of legal recognition, as quickly as possible. The IACtHR did so when it ruled that the American Convention on Human Rights guaranteed equal access to marriage without any discrimination (Advisory Opinion OC-24/17, para. 228). The ECtHR has instead chosen to move, at best, at a crawl. Herein is the fundamental problem with the ECtHR's case law on this subject; it emphasizes practical rights while leaving their enumeration to the State Parties themselves and has failed to progress beyond its original standard from its earliest cases.
Alternative Approach to Legal Recognition
This is not to say the ECtHR must move their case law immediately to marriage equality; legitimate concern exists regarding the risk flagrantly ignoring European consensus could cause. When the IACtHR established marriage equality within the Inter-American human rights system in Advisory Opinion OC-24/17, scholars raised similar concerns. Fabricio Alvarado, who supported withdrawing Costa Rica from the Inter-American human rights system in response, came second in the presidential election following the advisory opinion, demonstrating the potential reactionary response such a judgment may incur. Yet, the ECtHR presides over a continent where at least legal partnership now exists in a significant majority of State Parties. As of Fedotova and others, thirty State Parties of forty six recognize some form of legal recognition (Fedotova and others, para. 175). The ECtHR certainly has the discretion to provide at the very least concrete enumerations of the rights and obligations State Parties must guarantee to same-sex couples. The ECtHR could even go so far as to require equal rights and obligations for same-sex couples with opposite-sex couples, even if it remains unwilling to go so far as marriage equality given as only a small section (eighteen of forty six) State Parties recognized equal marriage access as of 2023 (Fedotova, para. 175). There are few good reasons precluding the ECtHR from at least pursuing proximity to marriage equality and moving away from its current discriminatory standard.
Przybyszewska and others, the most recent case from the ECtHR regarding legal recognition of same-sex couples, is certainly a victory, especially for same-sex couples in Poland. Despite the victory, the case reveals an alarming trend recently developing in the ECtHR's case law on the question of legal recognition. The ECtHR has, of late, moved away from its prior (already comparatively enervated) approach towards a practical, rights-based consideration of same-sex couples' interest in legal recognition. Despite a clear backing of a significant number of State Parties who have already achieved the current standard of providing legal recognition, a clear tocsin of further advancement, the ECtHR has still refrained from taking the next step in developing the European standard on the question. The ECtHR has resisted numerous opportunities to extend its hermeneutical approach at least to some extent despite the fact that European countries are increasingly meeting and surpassing the ECtHR's current standard. Additionally, it has maintained an indifferent approach to the content of legal recognition while nevertheless shifting its rhetoric towards such practical questions. In short, despite the immediate victory for LGBTQ+ advocates in Przybyszewska and others, the case's language demonstrated alarming tendencies and trends which indicate further delays from the ECtHR in advancing its current position on same-sex relationships' legal recognition.
Comentários