## Facts

- Two Austrian men in a long-term relationship sought to marry in Vienna in 2002.
- The civil-status authority refused, citing Austrian Civil Code provisions understood to limit marriage to opposite-sex couples and to treat same-sex “marriages” as void.
- Administrative appeals were rejected, relying on domestic case law and an interpretation that Article 12 of the European Convention contemplated opposite-sex marriage.
- The applicants filed a constitutional complaint alleging violations of private and family life and non-discrimination (Articles 8 and 14) and the right to marry (Article 12).
- The Austrian Constitutional Court rejected the complaint, reasoning that equality principles and Article 12 did not require extending marriage beyond its orientation toward the possibility of parenthood.
- When the application was filed, Austria offered no registered partnership or similar status for same-sex couples; during the proceedings Austria enacted a Registered Partnership Act effective January 1, 2010.
- The applicants petitioned the European Court of Human Rights after exhausting domestic remedies, challenging both the denial of marriage and the earlier absence of any legal recognition.

## Issues

1. Whether Article 12 of the European Convention on Human Rights requires Austria to permit same-sex couples to marry.
2. Whether, under Article 14 in conjunction with Article 8, Austria discriminated against same-sex couples by failing (at the relevant time) to provide any legal framework recognizing their relationship.
3. Whether Article 1 of Protocol No. 1 required relief based on alleged property-related effects of the lack of recognition.

## Decision

- No violation of Article 12: the Convention did not, at the time, oblige Austria to open marriage to same-sex couples.
- No violation of Article 14 taken with Article 8: in the circumstances and time period at issue, Austria had not exceeded its margin of appreciation by lacking a legal recognition framework.
- The Court expressly accepted that a stable cohabiting same-sex couple can fall within “family life” for purposes of Article 8.
- The Article 1 of Protocol No. 1 complaint was rejected as raising no separate issue after resolution of the core Convention claims.

## Legal Principles

- Article 12 is not necessarily confined in all circumstances to opposite-sex marriage, but Contracting States retain discretion to decide whether to permit same-sex marriage absent sufficient European consensus.
- The Convention is interpreted as a “living instrument,” but the absence of a clear majority practice among Contracting States supports a wider margin of appreciation on sensitive social-policy questions.
- A stable same-sex partnership may constitute “family life” under Article 8, not merely “private life.”
- Sexual-orientation distinctions require particularly weighty reasons, yet the proportionality analysis may account for the period in which the alleged interference occurred and the State’s latitude regarding the timing and form of relationship recognition.

## Conclusion

The European Court of Human Rights held that Austria did not violate the Convention by restricting marriage to opposite-sex couples and, given the legal and temporal context, did not discriminate by failing at the relevant time to provide a legal status for same-sex couples, while confirming that stable same-sex partnerships can amount to “family life” under Article 8.


Schalk & Kopf v. Austria, App. No. 30141/04 (Eur. Ct. H.R. 2010)