By Yoohwan Kim
Impunity Watch Reporter, Europe

Photo: All EU member states do not allow same sex marriages. [Source: Justout.com]

STRASBOURG, France – On June 24 the European Court of Human Rights ruled that European nations are not legally obliged to allow and recognize same sex marriages.

An Austrian couple, Hörst Schalk and Johann Kopf, brought a case against Austria in 2004 after the couple sought a marriage permit in Vienna in 2002.  Austrian law only recognizes marriages between a man and a woman, and the country refused to give the gay couple a marriage license.

Schalk and Kopf battled through the Austrian court system with no success.  After the constitutional court of Austria upheld the lower courts’ decision to refuse their permit, the couple brought their case to the European Court of Human Rights in Strasbourg, France.  They claimed that the Austrian courts’ ruling violated their right to marriage under the European Convention on Human Rights.

Following Article 9 of the EU Charter of Fundamental Rights, the seven judges of the European court held that the Austrian couple is not guaranteed a right to marriage.  Each European country should decide their individual laws and how far they wish to recognize the legal status of same sex marriages.

The court stated that marriage has “deep rooted social and cultural connotations which may differ largely from one society to another.”  Each nation should implement their own policy and the “court reiterates that it must not rush to substitute its own judgment in place of that of the national authorities, who are best placed to access and respond to the needs of society.”

Some countries, like Sweden and the Netherlands are socially liberal, while other ones are more religious and conservative, such as Poland.  Six out of European Union’s 27 member states have legalized same sex marriages.

Belgium, the Netherlands, Sweden, Portugal, Norway, and Spain are the six nations that allow gay marriages.  In addition, there are about a dozen other nations, such as Britain, Germany, France, and (since January 2010) Austria, which currently recognize legal partnerships that carry the same legal status as marriage.

Despite the lack of an EU-wide law, the European Court of Human Rights did acknowledge “an emerging European consensus” that same sex marriages should have legal recognition in Europe.  Furthermore, the court found that gay couples are entitled to protection under charter definitions of family life.

Although Austria does not recognize same sex marriages, the country passed a Registered Partnership Act in January 2010.  This Act permits a registered partnership between gay couples, but differs from a legal marriage under the Austrian law.  A same sex couple is restricted in having a choice of name, adopting children, and using artificial insemination.

For more information, please see:

AP – Court: Same-sex Marriage is Not Universal Right – 25 June 2010

BBC NEWS – European Human Rights Court Rejects Gay Marriage Bid – 25 June 2010

IRISH TIMES – Same-sex Marriage Ban Upheld by Court – 25 June 2010