Article 14 ECHR in the Closet

On 13 July 2021, the European Court of Human Rights rendered its judgment in Fedotova and Others v. Russia and unanimously decided in favour of the three complaining same-sex couples. The couples were unable to register for marriage in Russia: Article 1 of the Russian Family Code restricted marriage to a “union between a man and a woman”, the authorities argued. Given that other forms of legally recognised unions are unavailable to same-sex couples in Russia, the applicants invoked a violation of both Article 8 and Article 14 in conjunction with Article 8. The Court found a violation of Article 8 but did not examine Article 14.

The Road Towards Legal Recognition of Same-Sex Couples

To assess the importance of this judgment, let’s circle back to where the Court left off in terms of same-sex couples’ right to legal recognition.

In 2010, it affirmed that same-sex marriage was a matter for national regulation, mostly for a lack of European consensus and the “deep-rooted social and cultural connotations” (Schalk and Kopf v. Austria, § 62). So, no right to marriage – but what about civil unions? Since Austria had recognized them in the meantime, the Court confined itself to finding that Austria was in any event not obliged to do so any sooner than it did (rather unconvincingly, as the Joint Dissenting Opinion pointed out). Three years later, in Vallianatos v. Greece, the Court reviewed a law that had introduced a civil partnership, but for different-sex couples only, and found this to violate Article 14 in conjunction with Article 8.

The most promising judgment on the road to legal recognition so far was Oliari and Others v. Italy, rendered in 2015. Here, the merely symbolic legal protection available to same-sex couples in Italy was found to violate Article 8. The Court adjudged for the very first time that the absence of a sufficient legal framework protecting the rights of same-sex couples violates Article 8. While a fair balance must “be struck between the competing interests of the individual and of the community as a whole” (§ 160), in this case, there was no real competition: Not only did the majority of the Italian population support the recognition and protection of homosexual couples (§ 181), but the Italian Constitutional Court had already called on the Government to recognise the rights of same-sex couples.

These facts of the case led to a legal insecurity: Arguably, it was the intervention of Italy’s highest judicial authorities that triggered Article 8, rather than Article 8 imposing a positive obligation on Italy to intervene (in fact, the Concurring Opinion insisted on this narrower reasoning). So the question remained: How much of Oliari could be applied to cases where there was no support of the community for LGBTQI rights, but rather disdain?

A Positive Obligation to Legal Recognition – but Without Contours

This leads us right to the importance of Fedotova. The Court clearly stated that “[i]t would be incompatible with the underlying values of the Convention, as an instrument of the European public order, if the exercise of Convention rights by a minority group were made conditional on its being accepted by the majority” (§ 52). While this finding ties into established jurisprudence, it is noteworthy how the Court engaged with the community interests Russia threw into the balance in order to oppose such obligation. Russia invoked an “interest in protecting minors from display of homosexuality” based on domestic so-called “propaganda laws” (recently copied by Hungary). As the Court castigated this domestic law in Bayev and Others v. Russia, it swept away this argument without much ado (§ 53).

The second interest Russia relied on was the protection of “traditional marriage”, an interest the Court accepted in principle as it may strengthen family unions (§ 54). However, the Court could not “discern any risks for traditional marriage, which the formal acknowledgment of same-sex unions may involve, since it does not prevent different-sex couples from entering marriage, or enjoying the benefits which the marriage gives“ (§ 54). A same-sex couple’s loss is not a married couple’s gain. Russia’s arguments thus failed – the Court could “not identify any prevailing community interest” at all (§ 55). As a result, it is now beyond doubt that even in States, where homosexuality is legally targeted, the State has a positive obligation to provide some form of legal recognition.

In implementing that positive obligation, the Contracting States have a margin of appreciation. Unfortunately, the Court says very little on what that entails, except that “where a particularly important facet of an individual’s existence or identity is at stake the margin allowed to the State will be restricted” (§ 47). But not a word on an emerging European consensus although both the applicants (§ 38) and Russia (§ 33) had addressed this in their submissions. With 30 out of 47 Contracting States providing for legal recognition of same-sex couples as of now (§ 29), the Court’s assessment would have been interesting. However, given that Russia had nothing at all in place, the Court could refrain from outlining the content of the positive obligation.

An Equality Easter Egg Instead of an Analysis

Another absence is more puzzling: As in Oliari, the Court found it unnecessary to also pronounce itself on Article 14 (§ 57). Although it may confine its findings to the violation of a substantive article where that article has been invoked both on its own and in conjunction with Article 14, the situation is different “if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case” (Dudgeon v. UK, § 67). Well, is it in Fedotova?

The Court provides an answer to that very question by placing an equality Easter egg in its analysis of Article 8. There, it states that same-sex couples “are in a relevantly similar situation to a different-sex couple as regards their need for formal acknowledgment and protection of their relationship” (§ 48); a finding that both in Vallianatos (§§ 78, 81) and in Schalk and Kopf (§ 99) had its place more suitably in the examination of Article 14. Maybe the Court merely wanted to emphasize that homosexual couples enjoy the right to private and family life as much as heterosexual couples do. It thereby – voluntarily or not – shines a spotlight on the missing discrimination analysis, and the light shines even brighter in the face of Russia’s discriminatory arguments outlined above.

What exactly is amiss in Fedotova without a discrimination analysis? Article 14 aims at full inclusion through access to rights, whereas Article 8 may grant recognition at most and turns a blind eye on persisting exclusion (a logic which Nora Markard coined as “private but equal”). Under a discrimination paradigm, the Court would have had to engage further with the many ways in which the social reality of same-sex couples differs from their fellow heteronormative citizens (§ 51), such as regards tenancy, lack of health insurance, privileges in criminal proceedings, residence permits and so forth (§ 26). Article 8 merely asked the Court to compare the social reality of homosexual couples with the law as it stands (§ 51), rather than comparing the social reality of the marginalized group with that of the privileged group.

Warning Shots Fired

Fedotova is an important step forward but one pretty much already mapped out by the Court’s case law. It is symptomatic of the Court’s harmful inertia when it comes to Article 14. The judgment misses an important – if not the main – analytical dimension of wrongdoing. However, another opportunity opened up in the pending case of Formela v. Poland. Polish same-sex couples raise the very same complaint as did the applicants in Fedotova, claiming a violation of both Article 8 and Article 14 in conjunction with Article 8. Fedotova is a warning shot fired towards Poland. With LGBTQI-hostile policies on the rise in Eastern Europe, a louder one may be asked for in Formela and this could be set off by an Article 14 analysis.