Sexual Orientation and the right to marry: a case study of ECtHR Oliari and others v. Italy

Abstract

Same-sex marriage is one of the important issues that have not yet reached full European consensus among EU member states. In particular, in relation to same-sex marriage, ‘The Margin of Appreciation Doctrine’ applied by the European Court of Human Rights has a very important meaning in analyzing same-sex marriage cases. The European Court of Human Rights held that the ‘European Consensus’ or ‘Consensus Argument’ is particularly important when issues in question are morally or ethically sensitive or complex and relate to the choice of social strategy. Specifically, the Oliari case is considered as leading case that has paved the way for full legal recognition of same-sex relationships in Europe. Furthermore, it is the first case to regard legal recognition and protection for same-sex couples as a Positive State Obligation . The fact that the European Court of Human Rights did not respond to the claim of violation of Article 14 (the principle of non-discrimination) in conjunction with Article 8 of the European Convention on Human Rights has naturally been criticized. Nevertheless, it should be emphasized that the Principle of Proportionality played an important role in the reasoning process of the Oliari decision. In addition, there are good lessons that Korea can learn from the Oliari decision particularly in the relation to Positive State Obligation to recognize same-sex relations as well as making progressive interpretation to sufficiently protect the rights of sexual minorities.