The case for same-sex marriage before the European Court of Human Rights

Frances Hamilton

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Abstract

For proponents of same-sex marriage, this essay considers the best strategy for success before the European Court of Human Rights ('ECtHR'). The privacy aspect of Art 8 ECtHR will never be a successful argument with reference to marriage which involves a public status. The equality argument (Article 14) is useful in addressing this issue with its close connections with citizenship, symbolic value and proven record internationally. Difficulties remain with the equality argument; its conditional status, the width of the margin of appreciation ('MoA') required and the need for an equality comparator. The equality argument needs reinforcement by use alongside a developing family law argument under Article 8 and a dynamically interpreted Article 12 (right to marry) argument. Ultimately the success of any argument depends upon the developing consensus among Member States of the Council of Europe ('Member States').
Original languageEnglish
Pages (from-to)1582-1606
JournalJournal of Homosexuality
Volume65
Issue number12
Early online date26 Sep 2017
DOIs
Publication statusPublished - 2018

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