The Grand Chamber of the ECtHR has handed down a judgment that might give the Department for Culture, Media and Sport some pause for thought.
In Vallianatos & Ors v Greece  ECHR (GC) 1110 the applicants were a group of same-sex couples who alleged that the fact that the “civil unions” introduced by Law no. 3719/2008 were designed only for opposite-sex couples had infringed their right to respect for their private and family life, contrary to Article 8 ECHR, and amounted to unjustified discrimination between different-sex and same-sex couples to the detriment of the latter, contrary to Article 14. This was a first-instance hearing, the First Section having relinquished jurisdiction in favour of the Grand Chamber; and by sixteen votes to one (Pinto de Albuquerque J dissenting in part) the Grand Chamber found in favour of the applicants.
Civil unions in Greece were introduced to reflect the social reality of cohabitation outside marriage and to allow couples to register their relationships within a more flexible legal framework than that provided by marriage. The report on which the legislation was based noted that the number of children born in Greece to unmarried couples living in de facto partnerships was by then around five per cent of births. It also argued that the position of women left without any support after a long period of cohabitation and the phenomenon of single-parent families generally were major issues that called for a legislative response. The report also pointed out that Article 8 ECHR protected non-marital unions from the standpoint of the right to private and family life and that a number of European countries gave legal recognition to some form of registered partnership for different-sex or same-sex couples. It concluded that the introduction of civil unions would represent a new form of partnership and not a kind of “flexible marriage” and argued that ”traditional” marriage would not be weakened by the new legislation because it was governed by a different set of rules. So the new law was duly introduced – amid considerable controversy and in the face of opposition by the Orthodox Church.
The Grand Chamber pointed out (para 75) that the applicants’ complaint was not an abstract one about a general obligation on Greece to provide for some form of domestic legal recognition for same-sex relationships; rather, because it provided for civil unions for different-sex couples only, Law no. 3719/2008 automatically excluded same-sex couples from its scope. The complaint was not that Greece had failed to comply with any positive obligation under the Convention but that the distinction between opposite-sex and same-sex couples under Law no. 3719/2008 was discriminatory and the issue, therefore, was whether or not Greece’s registered partnership scheme for unmarried opposite-sex couples was compliant with Articles 14 and 8 ECHR.
Under the Convention, sexual orientation is a concept covered by Article 14 (para 77) and same-sex couples are assumed to be just as capable as different-sex couples of entering into stable committed relationships and are therefore in a comparable situation to different-sex couples as regards their need for legal recognition and protection of their relationships (para 78). The Court noted that s 1 of Law no. 3719/2008 expressly reserved the possibility of entering into a civil union to two individuals of different sex; and by tacitly excluding same-sex couples from its scope it introduced a difference in treatment based on sexual orientation (para 79).
The Court concluded that, though there was no consensus among member states, a trend was emerging to introduce of forms of legal recognition of same-sex relationships. Of the nineteen states which authorised some form of registered partnership other than marriage, only Lithuania and Greece reserved it exclusively to different-sex couples (para 91). The fact that, at the end of a gradual evolution, a country found itself in an isolated position as regards one aspect of its legislation did not necessarily imply that that aspect conflicted with the Convention; however, the Court was of opinion that the Greek Government had not offered “convincing and weighty reasons” to justify the exclusion of same-sex couples from the scope of Law no. 3719/2008. There had therefore been a violation of Article 14 taken in conjunction with Article 8 of the Convention (para 92).
The Grand Chamber judgment is important because it is the first to address same-sex civil partnership rights outside of marriage. Schalk and Kopf v Austria  ECHR 1996 (which was referred to several times in Vallianatos) was about the inability of same-sex couples to contract marriage; and it foundered partly on the fact that Austria had by then introduced registered partnerships for same-sex couples. Moreover, Schalk and Kopf was decided by the First Section rather than the Grand Chamber.
But this is a fast-moving situation and a lot has happened in the Council of Europe member states, even since 2010. In a long analytic guest post on the ECHR Blog Paul Johnson, Reader in Sociology at the University of York, argues that the effect of the judgment is narrow:
“In typical Strasbourg fashion, it offers the most conservative and limited step forward in terms of same-sex partnership rights. The judgment cannot be read as introducing any positive obligation for contracting states to give same-sex couples access to legal forms of partnership recognition”.
Possibly not: but it is instructive to try reading the Vallianatos judgment and reverse the roles. An opposite-sex couple complains that “civil unions” or “civil partnerships” have been introduced but only for same-sex couples. They argue that they have been discriminated against under Articles 14 and 8 because they have been denied the opportunity of registering their relationship in a less formal and less traditional way than marriage.
So had the facts in Vallianatos been that way round, would the result have been any different? It’s pure surmise but my suspicion is that it would have not: and if I’m right, the DCMS had better hurry up with its consultation on introducing opposite-sex civil partnerships in England and Wales and then get on and do it – in the face of opposition if need be. After all, opposite-sex civil partnerships cannot, surely, be any more controversial than same-sex marriage. Or can they?
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