Shaping New Families: Same-Sex Couples’ Rights in the Dialogue between the Courts

Summary

1. THE ROLE OF THE ECtHR IN THE RECOGNITION OF SAME-SEX COUPLES’ RIGHT TO FAMILY LIFE

In the current cultural scenario, a wide-ranging debate has developed regarding the legal recognition of same-sex couples. This topic is crucial not only for the rights and principles at stake, which range from selfdetermination, equality and human dignity, to personal identity and family life, but also since it can be an effective tool for the comparatist who is attempting to assess the velocity of interaction – to use the words of Constantinesco – between society and the law, the relationship between the social transformations, and the reactions of the legal system, whether necessary or solicited.

The possible protection is grounded in a twofold foundation: on the one hand, a stable life-sharing communion can arise between same-sex persons based on the existence of a relationship grounded in affection, assistance and solidarity, identical to that between persons of a different sex and, therefore, likely to pose problems similar to those commonly faced by opposite-sex partners. On the other hand, the failure to protect these relationships results in unlawful discrimination based on sexual orientation, which is expressly prohibited, not only by national constitutions, but also by Article 21 of the Charter of Fundamental Rights of the European Union.

In this respect, national and supranational courts have played, and still play, a pivotal role in the removal of various forms of discrimination against same-sex couples, in order to recognise specific legal situations, in particular in those jurisdictions which lack a regulation, but also in those where situations of inequality based on sexual orientation still persist, despite the existence of a legislative solution – or, in some cases, because of it.

The judgments of the European Court of Human Rights (ECtHR) push hard in this direction by upholding an evolutive interpretation of the notions of family life, protection of privacy, and so on, as well as by enhancing the principle of non-discrimination pursuant to Articles 14 and 8 of the European Convention on Human Rights (ECHR). The path that has led to such interpretation has been gradual, and starts from the landmark decision Marckx v. Belgium, in which the Strasbourg Court showed the ability to stimulate and guide the profound transformations which went on to shape family law over recent decades, on the basis of the principles of equality, democracy and non-discrimination.