Same-sex marriage, consensus, certainty and the European court of human rights

Hamilton, Frances (2018) Same-sex marriage, consensus, certainty and the European court of human rights. European Human Rights Law Review, 2018 (1). ISSN 1361-1526 (In Press)

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Official URL: https://doi.org/10.1080/00918369.2017.1380991

Abstract

There remains no right to same-sex marriage before the European Court of Human Rights(‘European Court.’) Yet it seems likely that at some stage the European Court will recognise same-sex marriage. Recent dicta stresses the movement towards legal recognition across Member States. It is only a lack of consensus, leading to a wide Margin of Appreciation, which prevents the European Court recognising same-sex marriage. This piece proposes that if the European Court continues with this approach, they should at least outline in future judgements how many domestic legislatures need to legislate in favour of same-sex marriage, before they will determine that a consensus will exist. This is due to the constitutional, manifold legal and symbolic implications of marriage. It is essential for a same-sex couple to know when their marriage will be legally recognised. If done in a consistent manner, this would increase the legitimacy of the European Court and has the major advantages of transparency, certainty and predictability.

Item Type: Article
Uncontrolled Keywords: Same-Sex Marriage, consensus, European Court of Human Rights
Subjects: M200 Law by Topic
Department: Faculties > Business and Law > Northumbria Law School
Depositing User: Ay Okpokam
Date Deposited: 07 Feb 2018 11:03
Last Modified: 08 Feb 2018 13:29
URI: http://nrl.northumbria.ac.uk/id/eprint/32780

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