Same-sex marriage, consensus, certainty and the European court of human rights

Frances Hamilton

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Abstract

There remains no right to same-sex marriage before the European Court of Human Rights(‘European Court.’) Yet it seems likely that at some stage the European Court will recognise same-sex marriage. Recent dicta stresses the movement towards legal recognition across Member States. It is only a lack of consensus, leading to a wide Margin of Appreciation, which prevents the European Court recognising same-sex marriage. This piece proposes that if the European Court continues with this approach, they should at least outline in future judgements how many domestic legislatures need to legislate in favour of same-sex marriage, before they will determine that a consensus will exist. This is due to the constitutional, manifold legal and symbolic implications of marriage. It is essential for a same-sex couple to know when their marriage will be legally recognised. If done in a consistent manner, this would increase the legitimacy of the European Court and has the major advantages of transparency, certainty and predictability.
Original languageEnglish
JournalEuropean human rights law review
Volume2018
Issue number1
Publication statusPublished - 2 Feb 2018

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