The European Court of Human Rights and same-sex marriage: incompatible bedfellows?

This paper critically explores the European Court of Human Rights’ case-law in the area of same-sex relationship recognition and marriage rights, paying attention to jurisprudence under Article 8 (the right to private and family life), Article 12 (the right to marry and to found a family) and also Article 14 (the prohibition of discrimination with respect to the enjoyment of convention rights). Contrasting the Court’s judgments across these provisions reveals an apparent inconsistency. The Court has held in its more recent Article 8 judgments that some form of legal structure must be in place to recognise and secure the family rights of same-sex couples; by contrast, it has excluded the meaningful enjoyment of marriage rights beyond heterosexual unions. Its reasoning for its exclusionary approach to marriage rights has often been largely explained by reference to consensus analysis. However, consensus analysis provides an inadequate justification for excluding same-sex couples from marriage rights. Far from being value-free, a queer reading of the Court’s approach to same-sex relationship rights reveals the (hetero) normativity that shapes its engagement with the rights of same-sex couples.<p></p>