Same-sex marriage, globalisation, the response of paneuropean courts and international impact

Hamilton, Frances (2019) Same-sex marriage, globalisation, the response of paneuropean courts and international impact. Doctoral thesis, Northumbria University.

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Abstract

This collection of work totalling over 85,000 words published over the period 2013 – 2018 addresses two separate but closely inter-related questions. ‘(1) What role can the European Court of Human Rights (‘ECtHR’) and the European Union (‘EU’) play in claims for the recognition of same-sex marriage? (2) What further impact do pan-European courts’ approaches to same-sex marriage cases have internationally?’ The publications have been produced at a time of rapid social and legal change worldwide concerning the recognition of same-sex relationships. When this work was begun in 2012 only six countries in Europe recognised same-sex marriage. At the time of writing (October 2019) this has increased to 16 countries. However, many jurisdictions within Europe continue to refuse to recognise same-sex marriage. The last couple of years has seen leading judgments from the ECtHR, the European Court of Justice (CJEU) and the Inter-American court. As yet the ECtHR does not require contracting states to legalise same-sex marriage. In an era of Brexit, together with discussions by certain political factions regarding leaving the Council of Europe, there are increasing difficulties for pan-European organisations to act. This is particularly the case in relation to the topic of same-sex marriage, which often incites social, moral and religious controversy. The pieces in this work document the challenges raised by same-sex marriage claimants, the judicial and legal responses and the reforms that have or may still take place. Unlike many prominent works in this area which are highly influenced 3 by feminist or queer theories, this PhD focuses on doctrinal and comparative law methodology.
These works make a novel and significant contribution to the prior knowledge base in a number of ways. (1) Originality is demonstrated by novel critiques of the Margin of Appreciation (‘MoA’) doctrine and by evaluating the strength of different legal arguments for proponents of samesex marriage before the ECtHR. The detailed critical analysis in the publications highlights the importance of interpreting the non-discrimination rights (article 14 ECHR) together with a dynamic approach to the right to marriage (article 12) and further development of the family law aspect to article 8 ECHR. (2) Lack of consensus between contracting states is cited by the ECtHR as a reason for not requiring legalisation of same-sex marriage. A novel critique is set out concerning the lack of certainty over how consensus should be quantified or measured. (3) Other publications demonstrate originality by predicting the potential for EU involvement for same-sex couples, in relation to both expansion of free movement protections for non-EU national same-sex spouses and in the area of private international law. (4) A new choice of law theory is recommended for use in essential validity cases concerning same-sex couples. (5) Originality can also be seen by the published work providing an immediate and fresh insight into the possible impact of Brexit on same-sex couples. (6) The final section utilises comparative law methodology to recommend the use of the incrementalist theory in a strategic manner. The central conclusion reached, is that proponents of same-sex marriage should take 4 a new more holistic approach, taking into account all relevant factors. This should include consideration of the role of the ECtHR in advancing human rights and the ever expanding role of the EU and international comparative law to set out incremental steps for proponents of same-sex marriage.

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