The Intrinsic Value of Registered Partnerships and Marriage for Same-sex Couples, their Recognition Domestically and at the Strasbourg Court

Abstract

Only a minority of jurisdictions currently permit same-sex marriage – among them, England and Wales (from 2013), Scotland (from 2014) and Northern Ireland (from 2020). This chapter explores the drive towards marriage equality from a domestic perspective and through the European Court of Human Rights (ECtHR). On the latter point, the authors explore the ECtHR stance on civil partnerships and same-sex marriage under the European Convention on Human Rights and argue that the court's current approach shows tensions between two conflicting demands: the protection of sexual minorities, but also the safeguarding of its own authority through a doctrine of 'consensus', which avoids determinations that could lead to open conflict with several member states. Where the formalisation of same-sex relationships is concerned, 'East'/'West' divisions appear to exert inhibitory impact on the judgments, accommodated mainly via consensus analysis. This chapter considers ways of reconciling the two apparently conflicting aims. The authors conclude that reliance on consensus analysis means that the ECtHR is showing some willingness to open non-traditional institutions for formalising relationships in the form of registered partnerships to same-sex couples under the right to respect for private and family life. This approach, however, can be contrasted with the court’s reluctance to open the traditional institution of marriage to such couples under the right to marry.