20 March 2018
It is clear that there is a growing recognition across Europe, and worldwide, of the right for same-sex couples to obtain legal recognition of their unions and to be granted the rights and responsibilities that such relationships enjoy. In addition to 24 of the 47 Council of Europe member States enacting legislation permitting same-sex couples to have their relationship recognised as a legal marriage or as a form of civil union or registered partnership, legislation has also been adopted in Argentina, Australia, Canada, Mexico, New Zealand, South Africa and Uruguay. In the space of a month there have been two influential Court decisions on same sex unions, and it will be interesting to see the impact that these decisions have worldwide. On 26 June 2015 in the case of Obergefell et al v Hodges et al the US Supreme Court held that all US States must now grant and recognise marriage licences between same sex couples. On 21 July 2015 the European Court of Human Rights in Oliari and others v Italy ('Oliari') unanimously found that 6 Italian nationals' rights under Article 8 of the Convention had been violated. This blog focusses on the decision made by the ECHR. In Oliari the applicants complained that the Italian legislation did not provide a framework for the recognition of their stable, committed relationships and therefore discriminated against them as a result of their sexual orientation. Not only did the Italian law fail to regulate their rights and duties in spheres such as material and moral assistance between partners, the responsibilities in contributing to the needs of the family, inheritance rights, and their choices concerning family life, but they were prevented from having a public ceremony, which brought social legitimacy and acceptance. One of the most interesting aspects of the judgment was how the applicants felt that the Italian government's approach was out of step with public opinion and that of the highest judicial authorities. One of the 8 interveners who provided submissions to the court in the case, ARCD, provided statistics that 61.3% of the Italian population thought that homosexuals were discriminated against or severely discriminated against and 74.8% thought that homosexuality was not a threat to the concept of the 'family'. The Court stated that 'the statistics submitted indicate that there is amongst the Italian population a popular acceptance of homosexual couples, as well as popular support for their recognition and protection.' The Court was concerned about the conflict 'between the social reality of the applicants, who for the most part live their relationship openly in Italy, and the law, which gives them no official recognition on the territory'. Whilst the government claimed that it was difficult to reach a balance between the different sensitivities on such a delicate and deeply felt social issue, the statistics showed a general acceptance of homosexuality in Italy. The Court also referred to the fact that Ireland and Malta had made legislative developments in recognising same-sex unions, despite the fact that they, like Italy, share a deep attachment to the Catholic religion. The Italian government has recently indicated a shift in attitude, when it reduced the time taken to get divorced after a legal separation to 6 months in uncontested cases, and a year when contested (when divorce was legalised in 1970 it took five years, which was reduced to 3 in 1987 and now 6 months). It is always complicated when a court finds that there is a disparity between public opinion and legislation; the court has a duty to comply with legislation rather than be swayed by the public. One of the dissenting judges in Obergefell made the point: 'judges have power to say what the law is, not what it should be'. In line with that thinking, when Oliari came before the Italian Constitutional Court, it held that it could not provide a solution to the applicant's problems if that solution were not available in law. So, although under Article 2 of the Italian Constitution, two people of the same sex, have a fundamental right to freely express their personality in a couple the Constitutional court found that a measure to protect that right could only be put in place by Parliament. The Constitutional Court had no power to fill a legislative lacuna. In the 5 years since the Constitutional Court had made this finding, and despite repeated urgings for the government to act, the Italian government had not made any legislative changes to address it. It was because of this finding made by the Constitutional Court that 3 of the judges found that it was not necessary for the ECHR to decide whether Italy has a positive obligation under Article 8 to recognise the union of same-sex couples. Unlike the majority of the judges, they said that the applicants' claim could be dealt with on the basis that the active intervention of Italy into the regulation of the applicants' right to respect for their private and family life was incompatible with the requirements of Article 8. The fact that the Italian government had failed to take action involving the denial of a fundamental right which only Parliament could fill, meant that it was entirely appropriate to rule that the government had violated Article 8. In many respects this line of argument is more compelling; the Italian government is in breach because it is failing to protect a right that it's own constitution provides for. What is certainly clear is the ECHR recognises that same-sex couples are just as capable as different-sex couples of entering into stable, committed relationships and acknowledges that same-sex couples are in need of legal recognition and protection of their relationships. It is, however, important to note that even the majority decision in Oliari makes clear that Article 12 does not impose an obligation on member States to grant same-sex couples access to marriage. It does not therefore follow that the remaining 23 member States will be obligated to adopt civil union laws immediately. The ECHR's findings in Oliari were very much based on the specifics of Italy's domestic laws, its national courts' rulings and public opinion in Italy regarding homosexuality.