Equal civil partnerships divide opinions. For their proponents, access to such a status, and the legal benefits that follow, allows couples critical of marriage – whether same or different-sex – the ability to express their relationship through (in their view) a more appropriate, modern and egalitarian legal institution. Opponents question such a need in light of the availability of civil marriage, which has over centuries evolved and may not now necessarily be perceived as embodying the patriarchal or heteronormative values that its critics challenge. Calls for allowing different-sex as well as same-sex couples to enter civil partnerships in England and Wales have grown louder recently following the failed Equal Love case (Ferguson v UK), the production of several Private Members Bills and the on-going litigation in Steinfeld and Keidan v Secretary of State for Education, due to be heard by the Supreme Court in Spring 2018. The desire, however, for different-sex civil partnerships is not limited to this jurisdiction, and was recently explored for the first time by the Strasbourg court in Ratzenböck and Seydl v Austria. After exploring the background to this legal challenge, this article will critically analyse the reasoning of the Strasbourg Court and assess its implications for the challenge in Steinfeld.

The key argument this piece puts forward is that states should not maintain asymmetry of access to formal relationship statuses based on sexual orientation: if a state has introduced registered (civil) partnerships it should open them to both different and same-sex couples, an argument that also applies to marriage. The term ‘asymmetry of access’ will be used to cover: offering access to marriage for different-sex couples and no such access to same-sex ones who also cannot access any registered partnership scheme; offering access to marriage to different-sex couples and access to such a scheme to same-sex ones; offering access to either of two formalised relationship statuses to one group of couples, based on gender and sexual orientation, and access to only one such form to the other group.

Background facts and law

Ratzenböck and Seydl have been in a stable committed relationship for several years. Shortly after the introduction of registered partnerships in Austria in February 2010, the couple sought to register their relationship, believing that such partnerships offer a better reflection of their union and that ‘marriage was not a suitable alternative for them’ (para ). Despite some legislative changes harmonising the consequences of registered partnership with marriage, the couple view such partnership as fundamentally different and ‘lighter’ than marriage as it entails shorter waiting-periods for dissolution, lesser maintenance obligations and differing legal consequences following the death of a partner. In March 2010 their application to enter a registered partnership was dismissed on the basis that they were not of the same sex. Relying upon, inter alia, a constitutional right to be treated equally before the law and Articles 8, 12 and 14 ECHR, the couple claimed that such refusal constituted discrimination on the bases of both gender and sexual orientation.

The Austrian Constitutional Court dismissed their claim. It reiterated that Article 12 ECHR had been found to apply at Strasbourg only to the traditional civil marriage between a woman and a man, and did not also encompass a right to enter into a registered partnership. Since Strasbourg in Schalk and Kopf v Austria had held that there currently was no consensus among the Member States concerning marriage for same-sex couples, and that issue therefore fell within the margin of appreciation left to the Member States, that must, it found, be even more clearly the case in respect of the question of access of different-sex couples to a registered partnership, since only a very small number of Member States made such provision.

As regards Article 8 and 14 it was found that since the Austrian legislator had decided to create a legal framework to recognize same-sex partnerships, other individuals concerned could rely on Article 14 in relation to that institution. The Court noted that in general very weighty reasons had to be brought forward in order to justify a difference in treatment based on gender or sexual orientation. However, in Schalk the Strasbourg Court had held that the legislator was allowed to limit civil marriage to different-sex couples, because the state would dispose of a certain margin of appreciation concerning the exact status to accord to an alternative institution applicable to same-sex couples, and had indicated that that margin would apply to a state decision to create asymmetry of access to formal relationship statuses as between same and different-sex couples. The Strasbourg Court in that instance had indicated that so long as one formalised relationship status was available to same-sex couples that would satisfy the ECHR. The Constitutional Court also assumed that the rights accorded to same-sex couples by the Austrian Registered Partnership Act were comparable to those accorded via civil marriage, apart from parenting rights. Given the findings as to the margin of appreciation therefore accorded to the state, the Court appeared to apply fairly light scrutiny only to Austria’s justification for maintaining the current position.

The Constitutional Court concluded that Article 8 read with Article 14 did not grant the couple a right to conclude a registered partnership. That was partly on the basis of a lack of a European consensus on the matter of opening registered partnerships to different-sex couples. But the Court also took into account the fact that the institution of civil marriage was open to different-sex couples, who were not part of an historically disadvantaged, vulnerable, discriminated-against group, while the institution of the registered partnership was created in order to counteract discrimination against same-sex couples.

Findings of the Strasbourg Court

In a short judgment the Court, by five to two, found no breach of Article 14 read with 8, on the basis that, since they could marry, the applicants were therefore not in a relevantly similar or comparable situation to same-sex couples who had no right to marry in Austria and needed registered partnership as a means of providing legal recognition to their relationship. Thus the claim failed at the first hurdle under Article 14: since no comparator was found, the Court did not need to assess the difference of treatment or the justification for the difference. The fact that the applicants as a different-sex couple had access to marriage was found to satisfy their principal need for legal recognition of their relationship. Moreover, the majority found that they had not claimed to have been specifically affected by any difference in law between the two institutions. There had accordingly been no violation of Article 14 in conjunction with Article 8.

Critique of the findings

The argument that no comparator was available was, it is argued, readily open to challenge. The Court in Schalk and in Vallianatos v Greece accepted that same and different-sex couples are in a comparable situation as regards their need for access to a formalised relationship status; it made a similar finding in Oliari v Italy but under Article 8 read alone (see Hayward (2016)). Given the objections of Ratzenböck and Seydl to marriage, it was not an effective option for them. Therefore they were in the same position as that of a same-sex couple in the state in which a registered partnership, not marriage, was the only formalised relationship status open to them and to which they had ideological objections (the position which arose in the transsexual case of Hämäläinen v Finland). Admittedly, the Court in Schalk did not accept the couple’s argument that they should be able to conclude marriage, as opposed to entering a registered partnership, but that was partly due to the lack of consensus on the introduction of same-sex marriage among the contracting states at the time. The consensus argument that could have been relied on in Ratzenböck is considered below; it could have been linked to consideration of the comparator argument as well as to the issue of justification (had that stage been reached under Article 14). Obviously, had the Court accepted that the couple were in a comparable situation to that of a different-sex couple it would have had to accept the converse argument when same-sex couples challenged bars on same-sex marriage in states where they could access a registered partnership. But the Court could have resisted such claims, as on policy grounds it clearly wishes to do (see below), at the justification stage, using the argument that strict scrutiny should not be applied to the state’s justification due to the lack of consensus at present on the introduction of same-sex marriage in the contracting states. This point is pursued below.

The Court may be taken to have impliedly indicated – since the judgment did not advert to the point – that the need, accepted by the Austrian Constitutional Court, to be part of an historically disadvantaged group to attract strict scrutiny is not required at Strasbourg which, as mentioned above, accords strict scrutiny to justifications for differentiation based on sexual orientation, without a requirement of vulnerability. In any event, had it taken that consideration into account, it could have been argued that if a couple seek a registered partnership, partly due to the patriarchal associations of marriage, their claim relates to a rejection of an historical association between repression of women and marriage. Women are obviously an historically disadvantaged group. However, these matters were not canvassed, given that the Court did not reach the stage of considering the state’s justification.

Consensus analysis did not play a part in the ruling of the majority. If the question had been asked in respect of that analysis whether a majority of states, after introducing registered partnerships, had confined them to same-sex partners, the answer would have been in the affirmative. Therefore the Court could have provided a wide margin of appreciation to Austria, and avoided strict scrutiny of any justification put forward – had that stage been reached – under Article 14. Austria’s justification for failing to open registered partnerships to different-sex couples then could have been accepted, under light scrutiny.

But it could have been asked instead whether, after the introduction of same-sex registered partnerships, states had maintained asymmetry of access as between different and same-sex couples. Had that question been asked it would have been found that within that group of states, once same-sex registered partnerships were introduced, the majority of them proceeded to introduce same-sex marriage (and usually, not invariably, phased out registered partnerships). States falling within this category include Belgium, Denmark, Finland, France, Germany, Iceland, Ireland, Luxembourg, Malta, the Netherlands, Norway, Slovenia and Sweden. The result was either to achieve symmetry of access to one formalised relationship status – marriage, or to achieve such symmetry since same and different-sex couples could access marriage or a registered partnership. In contrast, only a minority of states maintained the asymmetry of access to a formalised relationship status found in Austria, namely, the Czech Republic, Switzerland, Hungary, Liechtenstein, Croatia, and Italy (and certain states permitted a different form of asymmetry via offering two options to different-sex couples, namely Andorra, Cyprus, Estonia and Greece). Thus within the group of contracting states that introduced same-sex registered partnerships, the majority did not maintain asymmetry. If that argument as to the consensus had been deployed the margin of appreciation would have narrowed and strict scrutiny could have been applied to Austria’s justification. Thus the determination as to the width of the margin would have depended on the framing of the question. Under strict scrutiny Austria’s justification for confining different-sex couples to one relationship status, creating an option for formalisation of their relationship which was not an effective one for some couples, might not have been accepted.

The decision was obviously consistent with the Court’s previous acceptance of creating segregation based on sexual orientation by offering registered partnership to same-sex couples and marriage to different-sex ones. Had a breach of Article 14 read with 8 been found, and Austria had responded by opening registered partnerships to different-sex couples, the asymmetry of access to formalised relationship statuses in Austria as between same and different-sex couples would obviously have been exacerbated, placing same-sex couples in an even more disadvantaged position than was previously the case, a matter that the Court adverted to. A striking asymmetry of access would have been created, disadvantaging same-sex couples. However, in practice, given that the Court would then have made a strong statement of principle to the effect that such segregation should be rejected as discriminatory on grounds of sexual orientation, further pressure would have been placed on Austria to open marriage to same-sex couples.

Dissenting Opinion

One particularly striking aspect of the decision is the joint dissenting opinion of Judges Tsotoria and Grozev, the representatives on the Court from Georgia and Bulgaria. Criticising the majority’s view that the appellants were not in a comparable position to same-sex couples as ‘unconvincing’ and one that ‘hollows out’ the protection afforded by Article 14, they considered that the opposite finding should have been reached. They favoured the approach of the Court in Schalk and Kopf v Austria, in relation to access to same-sex marriage, which viewed the couples as in a comparable position but then accepted the Government’s argument that ‘history and tradition’ justified exclusion. Thus by dismissing the claim at the first hurdle, the majority, they believed, risked creating ‘in perpetuity a separate but equal approach’ by placing too much weight on the motivation behind introducing registered partnerships in Austria. The dissenters found that being influenced at the outset by ‘fresh legislative choices’ could create ‘stereotypes about the “different” nature of a heterosexual and a homosexual relationship’. It appeared that the dissenters favoured a finding of comparability since they considered that under the current position at Strasbourg, a justification based on ‘history and tradition’ by a Government would succeed.

Implications for Steinfeld and Keidan

In England and Wales, while same-sex couples can access marriage or a civil partnership, different-sex couples in the same position can only access marriage. That position gave rise to the challenge in Steinfeld by the two claimants, a different-sex couple in a committed long-term relationship, with a child (see Hayward (2017)). They are challenging, under Articles 8 and 14 ECHR, their exclusion from the choice of a civil partnership, since they are barred, as a different-sex couple, from entering that status under sections 1(1) and 3(1)(a), Civil Partnership Act 2004. Following the introduction of same-sex marriage, England and Wales, shortly followed by Scotland, became the first jurisdiction in the world to grant same-sex couples greater access to formalised statuses (civil partnership and marriage) than different-sex ones (marriage only). At first glance, the outcome in Ratzenböck and Seydl may appear to create a problem for the litigants in Steinfeld. The desire of both couples to enter a civil partnership is analogous. However, the positions they are in, due to the forms of asymmetry of access to formalised relationship statuses in the two states, are not.

First, a point of fundamental importance for the litigation in Steinfeld is that, unlike the position in Austria, a different form of asymmetry of access in England and Wales is apparent. This will be a key distinguishing feature in the Supreme Court. It will not be possible to argue that no comparator is available since the couple in Steinfeld are obviously in the same position as that of a same-sex couple who wish to formalise their relationship but do not view marriage as an effective option. The Court of Appeal in Steinfeld did not hesitate to find comparability under Article 14 (see - per Briggs LJ).

Second, Ratzenböck at paragraphs - clarifies at the Strasbourg level that a different-sex couple wishing to enter a registered partnership falls clearly within the ambit of ‘family life’ for the purposes of Article 8. That clarification will be significant in the Supreme Court: although the Court of Appeal in Steinfeld corrected the erroneous view of Andrews J on ambit, Arden LJ did introduce a somewhat tenuous distinction as to ambit when applied to either a positive or negative obligation (see -). Obviously this was to distinguish the countervailing House of Lords dicta in M v Secretary of State for Work and Pensions suggesting that there is a need for a specific adverse impact on the victim where a negative obligation is in question. It is argued that the Supreme Court should reject this gloss, and correct M, thereby only exploring the impact or detriment of the alleged interference at the justification stage of the Article 14 analysis.

Given that the analysis at Strasbourg in Ratzenböck did not proceed past the comparator stage, the decision, apart from the ambit point, would not appear to have any further determinative significance for Steinfeld. The Court of Appeal has accepted that the position constitutes discrimination that ‘affects one of the closest relationships which one adult has with another’ (at per Arden LJ). Therefore strict scrutiny of the government’s justification for failing so far to open civil partnerships to different-sex couples can be expected in the Supreme Court. The scrutiny in the Court of Appeal was purportedly strict, but it is argued that in practice it fell short of that standard. The UK Government has conceded that the current position in terms of asymmetry of access to formalised relationship statuses cannot be maintained (see in Steinfeld) but the majority in the Court of Appeal accepted as a justification that the Secretary of State needed more time to consider the options in terms of the future of civil partnerships once same-sex marriage had been introduced.

Conclusions

There is simplicity, almost irresistibility, in arguing that the availability of civil marriage refutes the case for equal civil partnerships. In dismissing the claim in Ratzenböck and Seydl, the Strasbourg Court has revealed clear support for that position. However, the question whether such partnerships should be introduced, as a matter of principle, at the domestic level remains, despite the finding that inability to access one for different-sex couples does not (at present) constitute a breach of Articles 8 and 14 ECHR at Strasbourg.

The Court avoided finding comparability in Ratzenböck because, it is argued, so finding could have opened the way, not only to opening registered partnerships to different-sex couples, but eventually to further challenges to bars to same-sex marriage in various Member States. In general, the Court’s attempts at reform in this context have, as this decision indicates, been confined, albeit hesitantly, to addressing the situation of same-sex couples who have no access to any means of formalising their relationship (see Fenwick (2016)). In other words, it is prepared at present to accept asymmetry of access where couples have access to one formalised relationship status, even where that means that the more recognised status – marriage – is not open to same-sex couples. Clearly, that form of asymmetry is less pernicious in Article 14 and 8 terms than the asymmetry created where such couples have no access to any formalised status. That stance also protects its own authority, which would be called into question if it took a bold stance against accepting that sexual orientation can determine a right of access to a formalised relationship status. Ratzenböck reaffirmed that policy-based stance. But it also sought to affirm the principle that differentiating between access to formal relationship statuses on the basis of gender and sexual orientation is not discrimination, a principle this piece views as unjustifiable and unsustainable.

This article first appeared on the UK Human Rights Blog, subscribe to the blog here.