European Court rules that same-sex partnerships must be treated as a human right.

Jul 28, 2015

Written By Sofia Gymer, Editor, AllAboutLaw.co.uk

In a landmark decision on Tuesday 22 July, the European Court of Human Rights ruled that international human rights law requires governments to provide legal recognition for same-sex couples.

The deciding case was Oliari & Others v. Italy, which saw three couples bring legal action against the Italian government. The complainants argued Italian legislation didn't allow them to get married or enter into any other type of civil union, and therefore they were being discriminated against as a result of their sexual orientation.

The court ruled that by failing to provide “specific legal framework providing for the recognition and protection of their same-sex union", the government was violating article eight of the European Convention on Human Rights: the right to privacy and family life.

Currently only 24 of 47 countries that have signed the European Convention on Human Rights legally recognise civil union or gay-marriage. Now, the Italian government particularly, lead by Prime Minister Matteo Renzi, is now under extreme pressure to pass legislation. This has been long promised by the PM, but the Senate has continuously blocked draft legislation.

Italy is the only major Western country that does not have such legal recognition. There are provisions for ‘cohabitation’, but these have been exposed as largely inadequate, particularly with regard to family related issues such as inheritance. Despite the strong hold that Catholicism still has in Italy, recent polls show that there is a majority in favour of the legalisation of civil union.

Ivan Scalvarotto, a junior minister and long-term gay rights campaigner, recently undertook a hunger strike with hope speed up the legislative process.

Following the ground breaking ruling by the US Supreme Court which legalised gay-marriage in all 50 states, he said: “The time has come to do something more to support those working to ensure Italy finally catches up with Kentucky, or at least gets near”.

Most critically, unlike the Obergefell v. Hodges case in the US, Oliari & Others v. Italy does not require governments to recognise gay marriage, only civil union. This makes the decision far more likely to be accepted in Italy, which is a majority Catholic country, as marriage is an inherently religious institution. The ruling of the US Supreme Court forces the hand of even the most conservative and religious states in America to legally accept gay marriage.

The relationship of the European Court with member countries is far more ambiguous than that of the US Supreme Court with the federal courts. There have been a number of times when countries, such as the UK and Russia, have refused to comply. There is little that the court can do apart from ejection them from the ECHR.

Observers will wait with baited breath to see whether Italy complies, or if any of the 23 outstanding countries make future legislative decisions with respect for the ruling.

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