In May 2004, Mr Chapin and Mr Charpentier submitted a marriage application to the civil registry department of Bègles municipal council. The civil registrar published the notice of marriage and the public prosecutor at the Bordeaux Tribunal de Grande Instance served notice of objection to the marriage on the Bègles civil registrar and on Mr Chapin and Mr Charpentier. Despite the objection, the Mayor of Bègles performed the marriage ceremony and made an entry to that effect in the register of births, marriages and deaths. In June 2004 the public prosecutor brought proceedings against Mr Chapin and Mr Charpentier in the Bordeaux Tribunal de Grande Instance, seeking to have the marriage annulled. On 27 July 2004, the Tribunal annulled the marriage and ordered its judgment to be recorded in the margin of the parties’ birth certificates and the marriage certificate. The Bordeaux Cour d’Appel and the Cour de Cassation upheld that judgment. They lodged their complaint nine years ago: in 2013 France legalised same-sex marriage.
In Chapin and Charpentier v France  ECHR 504, relying on Article 12 (right to marry) together with Article 14 (discrimination), the applicants argued that limiting marriage to opposite-sex couples was a discriminatory infringement of the right to marry. Relying on Article 8 (private and family life) taken with Article 14, they contended that they had been discriminated against on the basis of their sexual orientation.
The applicants claimed that, had they been heterosexuals, they would have had access to three protection schemes for couples – cohabitation, a pacte civil de solidarité (PACS) or marriage – and pointed out that legal protection under a PACS was lower than for marriage. That discrimination had no legitimate purpose and was disproportionate .
The Government, relying on Schalk and Kopf v Austria  ECHR 1996 and the Court’s affirmation that Article 12 does not oblige the respondent Government to open marriage to a homosexual couple, argued that the applicants could not claim discrimination because French legislation reserved marriage to opposite-sex couples. Moreover, following the entry into force of the Law of 17 May 2013, the applicants could now marry under the laws of the Republic .
In Schalk and Kopf v Austria [at 58-63] the Court had held that there was no European consensus on the issue of gay marriage; and though Article 12 applied to the applicants’ complaint, whether or not to permit same-sex marriage was a matter for the national laws of states parties. Marriage had deeply rooted social and cultural connotations that were likely to differ significantly from one state to another; and the Court should be slow to substitute its own assessment for that of national authorities best placed to assess the needs of society. It had therefore concluded that Article 12 did not oblige Austria to open marriage to same-sex couples .
In Oliari & Ors v Italy  ECHR 716 [at 192-194] the Court had said that the findings in Schalk and Kopf remained valid despite the gradual evolution in the attitudes of states parties – eleven now permitting same-sex marriage – and that neither Article 8 nor Article 12 (in conjunction with Article 14) could be interpreted as obliging states to open marriage to gay couples. It had therefore dismissed the Article 12 complaint as manifestly ill-founded [at 194] (though it should be noted that on the more general issue of the complete absence of any legal recognition of same-sex relationships in Italy, the Court had found a violation of the applicants’ rights under Article 8; and Italy subsequently legislated to recognise same-sex civil unions).
The Court saw no reason to reach a different conclusion in the present case, given the short time that had elapsed since the judgments in Hämäläinen v Finland  ECHR 787 and Oliari. It further noted that, subsequent to the application being lodged, the Law of 17 May 2013 had opened up marriage to same-sex couples and that the applicants were now free to marry.
As to the complaint under Article 8 taken with Article 14, even if at the material time the applicants could not have married under French law, they could still have concluded a pacte civil de solidarité under Article 515-1 of the Civil Code, which gives partners a number of rights and obligations in tax and social security matters . The situation was different from other cases in which the Court had found a violation of Article 8 with Article 14: in Vallianatos & Ors v Greece  ECHR 1110, civil partnerships were available only to opposite-sex couples, while in Oliari, Italy had provided no legal recognition whatsoever for same-sex couples. Moreover, as noted earlier, the Law of 17 May 2013 had changed the game [50-51].
In the present case, therefore, there had therefore been no violation either of Article 12 taken together with Article 14 or of Article 8 in conjunction with Article 14.
Judgment was handed down nine years after the application was submitted and seven years after the case was communicated (which, incidentally, tells us a lot about the Strasbourg backlog) and, in the meantime, the law was changed. So the outcome was probably inevitable. Moreover, the judgment seems to be very carefully designed not to tread on the toes of those states that have not yet implemented same-sex marriage and, in some cases, are unlikely to do so in the foreseeable future. The Court does now expect states parties to provide proper legal recognition of some kind for same-sex partnerships – see Vallianatos and Oliari – but it is clearly not prepared to go so far as to oblige them to introduce marriage on equal terms for same-sex couples. That, one suspects, might be a bridge too far.