There will be no “Obergefell” Decision at the European Human Rights Court

By J.C. von Krempach, J.D. | June 14, 2016

The European Court of Human Rights (ECtHR), otherwise rather ill-reputed for its unfettered and legally unfounded judicial activism, will not follow the example set by the US Supreme Court to bend the law in order to impose a duty to legally recognize same-sex “marriages” on all European countries. This is what came out clearly from a decision issued last week in the case of Chapin and Charpentier v. France (Appl. Nr. 40183/07), in which it was clarified that under the European Human Rights Convention the term “marriage” has no other meaning than that of a union between a man and a woman.

The case concerned a same-sex “marriage” that was registered by the mayor of a French municipality in 2004 despite the fact that at that time (i.e., prior to the controversial Loi Taubira, which was adopted in 2013) the French legal order provided no legal basis for such “marriages”. As a matter of consequence, the false “marriage” had been declared void by the Tribunal of Bordeaux at the request of the public prosecutor’s office. Although the mayor, Noel Mamère, a radical-left politician, had overtly and provocatively violated the law, this deliberate misuse of his office, which in a normal country would have been pursued as a crime, apparently had no negative consequences for him. Overt abuse of power is, in Europe like in the United States, the preferred strategy of Marxist culture warriors to push their agenda, and it was hoped in some quarters that this cheeky strategy would, as in other cases, be finally crowned by success before the ECtHR.

But the ECtHR has another strategy. Well aware of its rather fragile political and legal basis, the Court knows well that a judgment by which it would find in the penumbral fringes of the Convention a “right to same-sex marriage” would not lead to a break-through of same-sex “marriage”, but to the break-down of its own prestige and authority, because a major number of Member States would either openly ignore such deliberate misinterpretation of the Convention, or even decide to rescind their membership. While the number of States that legislate for counter-natural “marriages” between persons of the same sex keeps increasing, so does the number of countries that, as a reaction, have adopted specific constitutional provisions that protect marriage against such assaults, defining it exclusively as a union between a man and a woman.

Facing this strong resistance from a considerable number of European countries (16 inside the Council of Europe, 8 of which are EU Member States), the Court, which nevertheless pursues a clear agenda to “normalize” sodomy, seeks to achieve this goal – at least for the time being – in a less overt manner. In the case of Schalk and Kopf v. Austria it has clarified that the term “marriage” in the European Human Rights Convention must be understood today as it was understood back in 1950, the year when the Convention came into force. As a consequence, the right to marry and found a family, set out in Art. 12 of the Convention, is only enjoyed by different-sex couples. According to the Court this does not prevent States from legally recognizing same-sex “marriages”, but at the same time it cannot be said that they are obliged to do so.

In the same decision of Schalk and Kopf v. Austria, however, the Court for the first time advanced the spurious theory according which the relationship between two same-sex “partners” was a kind of “family relationship” that deserves protection under Article 8 of the Convention, thus surmising that “family” has a different meaning in different Convention provisions. Choosing this assumption, for which no solid legal argument was ever provided, and moving forward from there in incremental steps, the Court’s strategy is to interpret Article 8 as meaning that the “family life” of two co-habiting sodomites must be “respected” – at least in the same way as that of a co-habiting (unmarried) different-sex couple. At a later stage, this equality argument might be extended to put co-habiting partners (both different-sex and same-sex) on a par with a family based on marriage and descent. Ultimately this two-step approach could lead to the fabrication of an obligation for Member States to elevate sodomy-partnerships to the same rank as marriages, except for the name.

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