Of chalk and cheese : the European Court of Human Rights vs US Supreme Court.

 

Unlike  the  five (5)  liberal  political activists  judges  of  the  9-member  US Supreme who imposed   so-called “same-sex  marriage”  on  all  of  the  states of  the USA  even though the  concept was rejected  in 30 out  of  31 referenda  the European Court of  Human Rights stays within its  legal  boundaries  and   did  not  impose “same sex  marriage”  on the union.

Although the US  Supreme Court imposed same sex marriage  on all states it did not say  that there was a right to same sex marriage.

It is interesting  that  the Indian Supreme Court , again unlike what  the activists political  liberal judges of  the US Supreme Court  did  in 2003  in Lawrence vs Texas ,  found  no  right to  buggery.

 

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http://www.humanrightseurope.org/2016/06/france-judges-reject-same-sex-marriage-human-rights-complaint/

June 10, 2016 – European Convention of Human Rights
France: Judges reject same-sex marriage human rights complaint
Human rights judges have rejected a same-sex marriage human rights complaint against France.

Their ruling in the case Chapin and Charpentier v. France (no. 40183/07), was made yesterday (9 June).

The applicants, Stéphane Chapin and Bertrand Charpentier, are French nationals who were born in 1970 and 1973 and live in Plassac (France).

In May 2004, Chapin and Charpentier submitted a marriage application to the civil registry department of Bègles municipal council. The municipal civil registrar published the banns of marriage.

The public prosecutor at the Bordeaux tribunal de grande instance served notice of his objection to the marriage on the Bègles municipal civil registrar and on Chapin and Charpentier. Despite the objection, the mayor of Bègles performed the marriage ceremony and made an entry to that effect in the register of births, marriages and deaths.

On 22 June 2004, the public prosecutor brought proceedings against Chapin and Charpentier in the Bordeaux tribunal de grande instance, seeking to have the marriage annulled.

On 27 July 2004, the court annulled the applicants’ marriage and ordered its judgment to be recorded in the margin of their birth certificates and the marriage certificate. The Bordeaux Court of Appeal upheld the judgment.

Chapin and Charpentier appealed on points of law to the Court of Cassation, which on 13 March 2007 dismissed their appeal.

Relying on Article 12 (right to marry) taken together with Article 14 (prohibition of discrimination), Chapin and Charpentier submitted that limiting marriage to opposite-sex couples amounted to a discriminatory infringement of the right to marry.

Relying on Article 8 (right to respect for private and family life) taken together with Article 14, they contended that they had been discriminated against on the basis of their sexual orientation.

No violation of Article 12 taken together with Article 14
No violation of Article 8 taken together with Article 14

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On June 9, 2016, the European Court of Human Rights delivered its decision on the case of Chapin and Charpentier v. France (n°40183/07). It questioned the French courts’ decision to annul the “marriage of Bègles” contracted in 2004 between two men, in violation of French law.

By this decision, the European Court of Human Rights unanimously recalled that the European Convention on Human Rights does not include the right to marriage for homosexual couples, neither under the right to respect for private and family life (art. 8) nor the right to marry and to found a family (art. 12).
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More precisely, this new decision confirms a series of judgements and particularly recalls that:
The question of same-sex marriage is “subject to the national laws of the Contracting States” (§ 36, making reference to the Schalk and Kopf v. Austria judgement (n°30141/04);
Article 12 confirmed the traditional concept of marriage, which is the union between a man and a woman and “does not impose an obligation on the governments of the Contracting States to grant same-sex couples access to marriage” (§ 36, making reference to Gas and Dubois v. France, n°25951/07, § 66);
Article 12 “cannot be interpreted as imposing such an obligation on the governments of the Contracting States to grant same-sex couples access to marriage”. This recall of the recent judgements of Hämäläinen v. Finlande [GC] (n°37359/09), and Oliari and others v. Italy (n°18766/11 et 36030/11) has a very strong impact since it recognises the theoretical limits of the interpretation of the right to marry (§ 39);
In regard to the right to respect for private life (guaranteed by Article 8) and the principle of non-discrimination (Article 14), “States are still free (…) to restrict access to marriage to different-sex couples”, (making reference to Schalk and Kopf ,§ 108 and Gas and Dubois, § 66)
States “enjoy a certain margin of appreciation as regards the exact status conferred by alternative means of recognition” of same-sex relationships, and its differences concerning the rights and obligations conferred by marriage (§ 58).

The ECLJ welcomes this decisions, which it considers consistent with the correct interpretation of the European Convention on Human Rights. The ECLJ notes, however, that this decision does not totally rule out the possibility of a future development in the Court position in favour of a right to same-sex marriage as part of a right “to the recognition” of stable relationships. It also recognises that such an interpretation cannot be based on the wording of the Convention.

The question of same-sex marriage pushes the Court to the limits of its ability to interpret the Convention. These limits are marked by the very wording of this treaty and by the explicit will of the majority of its Member States. Although it is still appropriate to apply the Convention to the changes in society, on the contrary, it is inappropriate to pretend changing the very content of the Convention.

Grégor Puppinck

For further reading, see particularly: G. Puppinck, Same Sex Unions at the ECHR, 20 April 2015.

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