Same sex unions at the Strasbourg Court in a divided Europe: driving forward reform or protecting the Court’s authority via consensus analysis?

Abstract

This article considers the division in Europe on the matter of recognition and protection of same-sex relationships in the form of registered partnerships or marriage, an issue of especial significance at the present time in a number of Council of Europe states. It examines the developing Strasbourg jurisprudence that has incrementally contributed to the increasing spread of such protection and recognition across Europe, with a view to arguing that within it the Court appears to be seeking to reconcile two conflicting aims. It appears to intend to continue to combat the notion that same-sex and different-sex couples can be treated differently in this respect by states. But it is also seeking to preserve its own authority in the face of the opposition of certain Central and Eastern European states to the introduction of formal frameworks affording protection and recognition to same-sex relationships. In seeking to reconcile the two aims, it has placed reliance on varying forms of consensus analysis in the Member States, due to the link between such analysis and the grant of a wide margin of appreciation to a Member State.