After Colombia now it’s the ECHR’s turn for the big hit

It’s the 7th of April 2016 in Bogotà: in a traditionally conservative and catholic country, the Colombian Supreme Court has given the go-ahead to gay marriage. With 6 positive votes to 3, Colombia officially becomes the 4th state in Latin America to recognize the right of same-sex couples to get married. Magistrates went against a proposal that said marriage applied only to heterosexual couples and stated that, from now on, it’s up to the court and not the congress to decide about issues surrounding same-sex marriage.

This is, perhaps, yet further evidence that confirms the need of having a top-down approach to legislation to guarantee the safeguard of equality and human rights: once it has been established that in a society changes are taking place and that there exists a clear lack of protection for a consistent part of society, the institutions have the duty to step in. These fundamental changes need a strong guiding hand, and human rights, which are part of these changes, must be observed. Even if it seems that most people might not be ready for these changes yet.

This is what the Colombian Highest Court has done, despite the fact that its choice will encounter several complications. Some challenge to the court’s ruling on marriage equality is expected, although the court expressly stated that judges cannot refuse to perform a same-sex wedding.

This is the right first step to be taking and “keep it this way” seems to be the appropriate key-word.

So it has to be the same for Europe as well, where equality issues already have been guaranteed by the European Court of Human Rights since 1950. The ECHR has always been the standard for every regional monitoring system of human rights, but as of yet it hasn’t been keen enough to impose the full respect of gay rights into the legislations of the Member States of the Council of Europe.

The European Convention on Human Rights, based on an evolutionary approach of its praxis, is renowned to be a living document. Although it may be argued that the final aim of the ECHR is to modernize itself and to extend its competence in order to make human rights as much as all encompassing as possible. In order to play this part, though, the Court must take into account all of the European citizens new requirements, trying to identify and protect the discriminated categories in the application of the rights itself. And that is because human rights evolve alongside society, and therefore their safeguard must evolve as well.

With regard to the rights of homosexual marriage, we need to focus on articles 12 (right to get married) and 14 (prohibition of discrimination) of the European Convention.

The mile stone, in this case, is obviously the case of Schalk & Kopf v. Austria (2010) in which the magistrates stated “the Court would no longer consider that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two persons of the opposite sex”.  However, the Court also reaffirmed that, with regard to the article 12, it is up to the internal legislator to adopt a legal regime which allows homosexuals to marry, in accordance with the social and cultural background of the domestic situation.

While it is understandable that marriages should reflect the socio-cultural environment, it is also peculiar that this should hinder human rights in a given State. Is this what we really want? Do we want our cultures to be based on the systematic violation of human rights?

Traditions need time to evolve, but in the end they do change: in due time customs are created or hardened, and this could also apply to the respect of human rights, which would be a desirable thing to happen,

For these reasons, a decisive intervention by the ECHR would be invaluable to ensure at least a legal base. A binding sentence that, clearly and once for all, would deny States to prohibit same-sex couples the right to get married solely on the basis of their sexual orientation.

Currently only 27 of the 50 countries in Europe recognize some type of same-sex union legislation, most of which are also members of the European Union (although just half of EU’s Member States has laws that guarantee them). But the “other half” are composed of countries that have had a difficult past, where human rights have been constantly denied. Therefore, it is up to us and the ECHR to set the good example also for gay rights.

We did it before already (see the Baltic and Bulgarian Clauses), why not do it again?

Matteo Ilardo – ASSP Milano


We defined marriage as a ceremony in which two people are united in a consensual and contractual relationship recognized by law. Some people say it is a relationship rooted in human nature and thus governed by natural law. Natural law’s most elementary precept is that “good is to be done and pursued, and evil is to be avoided.” By his natural reason, humans can recognize the end or purpose of each of their acts and develop moral compass. If we continue in this direction, we can come to conclusion that every concensual partnership, powered by love and mutual respect, represents a natural phenomenon accepted by today’s society. And yet, the question mark is still being placed in front of syntagma “same sex relationships” (not to menton marriages).

Denying some people the option to marry is discriminatory and creates a second class of citizens. Same-sex couples should have access to the same benefits enjoyed by heterosexual married couples. Because of this, many lesbians and gay men are not open about their sexual orientation due to fears of discrimination, such as loss of employment,or antigay violence. Exclusion of same-sex attracted people from marriage also sends out the message that discrimination on the grounds of sexual orientation is acceptable.

Population that advocates traditional marriage between female and male consider same-sex marriage as sterile. Same-sex couples may decide to have a child within their relationship, while others may bring children from previous heterosexual or same-sex unions. The rise in same-sex parenting is partially due to the increase in options available for same-sex couples to become parents. Although most children of same-sex couples are biological children of one of the parents, a growing number are the result of donor insemination, surrogacy, foster care and adoption. For this reasons, many people don’t want to define same-sex union as marriage and give it the benefits of “true marriage”, and it’s primary purpose is: the perpetuation of the human race and the raising of children. The argument is also that the same-sex union between two men or two women denies the self-evident biological, physiological, and psychological differences between men and women which find their complementarity in marriage.

Marriage equality will not remove all prejudice, discrimination and unequal treatment against same-sex attracted people, it will be an important step towards this goal. Allowing same-sex couples to marry will admit many more couples who seek to uphold the core values of marriage. It will send out the message that marriage is defined by love and respect,and not by prejudice and discrimination. It will also prompt opposite-sex couples to re-value wedlock as an

institution in which the over-arching values are love, devotion, and not least, social inclusion. Allowing same-sex couples to marry will show that marriage is relevant and resilient enough to embrace changing social attitudes. The prominent evidence that marriage equality uplifts marriage can be found in those places where the recognition of same-sex relationships has a relatively long history. In Scandinavia the formal recognition of same-sex relationships has been in place for a generation and same-sex marriage is now widely allowed.

And now, let’s ask ourselves what exactly does the “true marriage” mean? Is it just a sealed heterosexual partnership which has a purpose to continue human race? Let’s say that we don’t live in just a “modern” technology era, but also in a big, sticky gray zone in which anything can be stucked, and everything is possible. Today’s society mixed form with content. Heterosexuality doesn’t guarantee healthy family without violence, or maybe deviances that are not excluded. This kind of perception leads to understanding of a human being as nothing but an ordinary reproductive machine. And that’s not part of a nature. Like it’s noted before, what natural is is everything primordial that charachterizes human beings. So, partnership is natural, created by love. Love defines our relationships, our well being, and our lives. And love is gender-blind.

MAPSS – Irina Koprivica