Same-sex marriage as a human right: How the Strasbourg Court could draw inspiration from the US Supreme Court and the Inter-American Court of Human Rights to affirm marriage equality

Abstract

In the last fifteen years, the European Court, the US Supreme Court and the Inter-American Court of Human Rights have all ruled on the issue of same-sex marriage. The Strasbourg Court has not, at this stage, dared to affirm the right to marriage, unlike its (inter)American counterparts. The article proposes a comparative analysis of the decisions rendered by the three jurisdictions: it highlights, beyond the (obvious and indisputable) differences between the three legal orders, the similar issues – of applicability, proportionality and subsidiarity – with which the judges responsible for ensuring respect for human rights are confronted. As the analysis also reveals, these issues are sometimes hotly debated within the courts themselves, while their understanding can be enriched by inter-jurisdictional dialogue. In conclusion, it is argued that, with regard to the recognition and protection of same-sex couples, the European Court should draw inspiration from American experiences and (1) clearly (re)affirm that the right to marry (art. 12 ECHR) applies to same-sex couples (2) mobilise the full potential of the prohibition of discrimination (art. 14 ECHR) and (3) move away from strict adherence to the European consensus rule.