Why the margin of appreciation is not the answer to the gay marriage debate

Hamilton, Frances (2013) Why the margin of appreciation is not the answer to the gay marriage debate. European Human Rights Law Review, 2013 (1). pp. 47-55. ISSN 1361-1526

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Abstract

This article offers an argument as to why the margin of appreciation is not an answer to the gay marriage debate. This is both of domestic importance due to upcoming legislative proposals on the issue as well of European and international importance given the demands of globalisation and the growing number of international families. In the leading case of Schalk and Kopf v Austria the European Court of Human Rights relied on the concept of the margin of appreciation in refusing to find any violation of the European Convention on Human Rights where Austria had not provided for same-sex marriage. However, reliance on this concept is unhelpful as it lacks clarity, meaning that the European Court of Human Rights has not investigated the reasons behind States Parties’ decisions on the issue of gay marriage. This article demonstrates by way of case analysis that this could mean that States Parties are acting both in relation to their legislation and their judicial supervision of statutes on the basis of erroneous or even discriminatory reasons.

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