Recently, there were claims in the British press that the European Court of Human Rights had issued a new ruling to the effect that “same sex marriage is not a human right”. These claims appeared in the Daily Mail, and in the Telegraph, though the latter subsequently amended its article to remove the errors that had been brought to their attention.
The situation was well explained in this article at The Blog That Peter Wrote titled The Case Against Same Sex Marriage.
…The Mail today reported on the Strassbourg case of Gas/Dubois v France. It relates to a lesbian couple in a French civil union, who complained that they were discriminated against because they could not adopt as a couple. The ruling is in French and is here. My French is no longer fluent, but I waded through it and also looked at the English summary which can be downloaded here if you are interested. The court found against the couple and expressly recognised (as it has done before) that a signatory state has to the right to discriminate against same-sex couples by not allowing them the right to marry if it so chooses.
The Mail, and the Telegraph [See Footnote] in a near virtual copy of the original article curiously reported that “the ruling also says that if gay couples are allowed to marry, any church that offers weddings will be guilty of discrimination if it declines to marry same-sex couples”. That is a pretty startling aspect that would drive a horse and cart through the government’s statement to the contrary.
It is also, as far as I can see, entirely wrong. There is nothing that I can find in the French ruling or the English summary to this effect. It is important to note that if there had been, of course, it would have been obiter in the sense that the court was looking at whether the couple had the right to adopt under a civil union, not considering hypothetical situations that do not exist. Further, the English law doctrine of binding precedent does not apply to ECHR judgements, so it would additionally have provided persuasive guidance rather than hard case law to be followed. But again, let’s get back to the point: it’s not in the ruling…
And he concludes:
Let me summarise: the Gas/Dubois ruling expressly confirmed the right of ECHR states to discriminate against gay people in matters of marriage. It did not discuss what I think is a key question of the interplay of the Article 9 Right of Freedom of Thought, Conscience and Religion with the right of a gay person not to be discriminated against, where a state does have same-sex marriage. The Netherlands, Sweden, Spain, Norway, Belgium all have full same-sex marriage. Any court actions in these countries attempting to force a clergyman to marry against his conscience in these countries would, I am sure, have been widely reported. Certainly nothing has reached Strassbourg.
This is only my opinion, but I think it is widely fanciful to suppose that, in the light of its repeated view that gay people can be discriminated against by their countries, Strassbourg would currently take on the church in this way and rule that the rights of a gay person to get married in church outweigh Article 9 rights. It is scare-mongering, it is conjecture, and it is not based on any jurisprudence I am aware of to pretend it is fact this would be the case…
Court judgment (only in French)
English summary of court judgment
Telegraph article as amended
Daily Mail article (has not been corrected)
And just today, there is a detailed discussion of this case, and its press coverage at UK Human Rights Blog titled Can a homosexual person adopt his or her partner’s child? The case of Gas and Dubois v France.