Same-sex marriage in US and European Court of Human Rights case law: A comparison

Abstract

Developments in human rights have led to the legal recognition of the right to marry as a fundamental right. However, recent social changes have caused reconsideration of just what that means. The traditional right entitles opposite sex couples to get married; this is now criticized using innovative legal analysis. Supporters of this new analysis claim that the right to marry shall be reconsidered to extend this right to same-sex couples. By way of comparison of legal reasoning of two courts, this paper tries to answer a question on potential changes in the case law of the European Court of Human Rights (ECtHR), based on the recent case law developments of the Supreme Court of the United States and ECtHR. In particular, the paper analyzes two critical cases. In the US, the landmark case is Obergefell et al. v. Hodges Director, Ohio Department of Health , 2015 where the US Supreme Court delivered a majority opinion establishing a rule for public authorities in different states to issue marriage licenses and certificates to the same-sex couple applicants. It was accompanied by strong dissenting opinions. This ruling leaded to controversy in states which do not recognize the marriage equality. In the ECtHR case law, the point of interest is Schalk and Kopf v. Austria , 2010 where the Court hesitated to recognize the right to same-sex marriage. Comparing the legal reasoning of these two courts applied in these cases, both describes the current status quo and highlights potential forthcoming changes in the position of the ECtHR.