In the case of Vallianatos and Others v. Greece, the Grand Chamber of the European Court of Human Rights held that the legal recognition of different-sex civil partnerships to the exclusion of same-sex civil partnerships was incompatible with the European Convention on Human Rights.
The applications were lodged by four different couples living in Greece. They alleged that Law no. 3719/2008 which provided for different-sex civil partnerships, known as ‘civil unions’, was incompatible with Article 14 of the Convention (prohibition of discrimination) in conjunction with Article 8 (right to private and family life), in that such unions could be entered into only by two adults of different sex.
The government sought to justify the exclusion of same-sex couples from the scope of the impugned legislation on two grounds. First, it argued that same-sex partners could enjoy the same rights as different-sex civil partners by means of ordinary contracts which would regulate their economic relations and inheritance issues. Second, it argued that, as civil unions provided a comparable legal relationship between parents and children to marriage itself, couples would no longer have to marry out of fear that their children would lose protection by being born out of wedlock. This would strengthen the institution of marriage, by reserving it for cases of genuine marital love and commitment. Consequently, in the government’s view, ‘the biological difference between different-sex and same-sex couples, in so far as the latter could not have biological children together’ served to justify limiting the availability of civil partnerships to different-sex couples (paras. 62-68 and 80).
Relying on its well-established case law, the Court noted that a difference in treatment on grounds of sexual orientation requires ‘particularly convincing and weighty reasons’ by way of justification to meet the Convention standards (para. 77). It held that civil partnerships had ‘an intrinsic value for the applicants irrespective of the legal effects’ in that the option of registering a civil partnership would allow them to formalise their relationship (para. 81). The impugned legislation was ‘primarily aimed at affording legal recognition to a new form of non-marital partnership’ and it regulated numerous aspects of the civil partners’ relationship, without differentiating between civil partners who had children and those who had not (paras. 86-88). The Court further noted that the government did not show that the exclusion of same-sex couples from the scope of the impugned legislation was necessary in order achieve the aim of protecting children born out of wedlock. In the Court’s view, the legislature could have extended civil partnerships to same-sex couples, while at the same time laying down specific provisions for the protection of babies born out of marriage (para. 89). Moreover, the Court held that a trend was emerging in relation to the legal recognition of same-sex relationships and that of the nineteen members of the Council of Europe whose legislation provided for some form of non-marital union, only Greece and Lithuania had reserved this possibility solely for different-sex couples (para. 91).
In the light of the above, the Grand Chamber held by sixteen votes to one that there had been a violation of Articles 14 and 8 of the Convention. However, one should note that the Court ‘delimited the scope’ of its own analysis by holding that the question of whether there was a positive obligation to legally recognise some form of same-sex partnerships was to be left open (para. 75). Accordingly, the effect of the Grand Chamber’s ruling is limited to those countries which have provided for different-sex civil partnerships to the exclusion of same-sex civil partnerships, namely Greece and Lithuania.
Menelaos Markakis is reading for a DPhil at the University of Oxford and is an Academy of Athens scholar in public law. He is a frequent contributor to the Oxford Human Rights Hub Blog.