Families But Not (Yet) Marriages? Same-Sex Partners and the Developing European Convention ‘Margin of Appreciation’

Abstract

This commentary examines two recent decisions of the First Section Chamber of the European Court of Human Rights, namely Schalk and Kopf v Austria and P.B. and J.S. v Austria. Both are significant in accepting that same-sex partnerships may fall within the ‘protection of family life’ limb of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, but Schalk and Kopf rejects the notion that Convention signatory states are required under Article 12 to admit same-sex couples to the right to marry, and declines to determine whether any minimal level of legal protection must be offered under Article 8. Both decisions highlight the central role currently played by the ‘margin of appreciation’ in this area.

Keywords: Schalk and Kopf v Austria, P.B. and J.S. v Austria, European Court of Human Rights, same-sex partnerships, marriage, margin of appreciation