“Same-Sex Marriage : Building an Argument Before the European Court of Human Rights in Light of the US Experience” (avec E. Bribosia & L. Van den Eynde), 32 Berkeley J. Int’l Law. 1. (2014)
In 2013, Same-sex marriage was under the spotlights on both sides of the Atlantic. While in Europe, heated debates took place before the French and the British parliaments, the U.S. Supreme Court made two landmark rulings. In the Council of Europe, only 10 of the 47 Member States have so far opened marriage to gay couples and the Court of Human Rights is the scene where more actions are taken. This paper adopts a critical and constructive look at the case law of the European Court of Human Rights and argues that the Court should recognize the right of same-sex couples to marry, in line with the Court’s precedents which pave the way for such a ruling. As a difference of treatment based on sexual orientation is at stake, serious and weighty reasons have to be provided to justify it. However, the Court so far has not required States to providethese reasons, leaving them a wide margin of appreciation. This paper urges the Court to take the suspect criteria seriously and finds it useful to look to the American situation. Indeed, in the U.S.,litigation has permitted to publicly set out the reasons for not granting same-sex couples the right to marry and these arguments have mostly been negatively assessed by various judges. A similar undertaking in Strasbourg should lead to the conclusion that denying same-sex couples the right to marry violates the Convention. Recognizing that this holding might be difficult to adopt in terms of judicial policy, this article reviews various alternatives for the Court to decide the pending cases on same-sex marriage, and ultimately finds these alternative rulings unsatisfactory.
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