Published online by Cambridge University Press: 27 February 2017
* This text was reproduced and reformatted from the text available at the United Nations Refugee Agency website (visited October 6, 2010) http://www.unhcr.org/refworld/country,,ECHR,,AUT,,4c29fa712,0.html.
1 This Note refers to the Convention for the Protection of Human Rights and Fundamental Freedoms, adopted in Rome on November 4, 1953, by its common name, ‘‘The European Convention on Human Rights.’’
2 Convention for the Protection of Human Rights and Fundamental Freedoms art. 12, Nov. 4, 1953, 213 U.N.T.S. 222.
3 Schalk & Kopf v. Austria, ¶ 9, App. No. 30141/04, Eur. Ct. H.R. (June 24, 2010), available at http://www.unhcr.org/refworld/docid/4c29fa712.html. Article 44 of the Austrian Civil Code provides, ‘‘[t]he marriage contract shall form the basis for family relationships. Under the marriage contract two persons of opposite sex declare their lawful intention to live together in indissoluble matrimony, to beget and raise children and to support each other.’’ Schalk, ¶ 14 (quoting Allgemeines Bürgerliches Gesetzbuch [ABGB] [Civil Code]).
4 Id. ¶ 11 (emphasis added).
5 Id. ¶ 13. The Constitutional Court looked to the European Court’s Judgment of September 27, 1990, in Cossey v. United Kingdom, concerning the position of transsexual persons, and although the Cossey analysis changed after the July 11, 2002, Judgment in Goodwin as regards the issue of transsexuals, the Constitutional Court found no reason to change ‘‘the biological criteria’’ in its traditional concept of who may contract marriage. See id. (citing Cossey v. United Kingdom, 184 Eur. Ct. H.R. (ser. A) (1990)); Goodwin v. United Kingdom, App. No. 28957/95, (Eur. Ct. H.R. July 11, 2002)), available at http://www.pfc.org.uk/node/350.
6 Perry v. Schwarzenneger, No. C 09-2292 VRW (N.D. Cal. Aug. 4, 2010). The case is on appeal, and the Ninth Circuit is scheduled to hear the case on December 6, 2010. It is considered almost certain to reach the U.S. Supreme Court. Since the U.S. Supreme Court has found that a majority of states in the United States do not recognize the right of same-sex couples to marry, it will likely not find that same-sex marriage is a constitutional right. However, the Supreme Court might surprise us, as it did in Loving v. Virginia, 388 U.S. 1 (1967). See infra note 15.
7 Charter of Fundamental Rights of the European Union, Dec. 7, 2000, O.J. (C 364/1).
8 Id. art. 9.
9 Schalk, supra note 3, ¶ 25.
10 Id. ¶ 27.
11 In Roper v. Simmons, for example, the U.S. Supreme Court counted the number of states in the United States that have recognized the right of juvenile offenders to be exempted from capital punishment due to their age, and concluded: ‘‘A majority of States have rejected the imposition of the death penalty on juvenile offenders under 18, and we now hold this is required by the Eighth Amendment.’’ Roper v. Simmons, 543 U.S. 551, 568 (2005) (emphasis added). See also McDonald v. Chicago, No. 08-1521, slip op. at 33 (U.S. June 28, 2010) (‘‘the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.’’). The Court in McDonald found that
[t]he right to keep and bear arms was also widely protected by state constitutions at the time when the Fourteenth Amendment was ratified. In 1868, 22 of the 37 States in the Union had state constitutional provisions explicitly protecting the right to keep and bear arms . . . .A clear majority of the States in 1868, therefore, recognized the right to keep and bear arms as being among the foundational rights necessary to our system of Government.
Id. slip op. at 29-30.
12 Schalk, supra note 3, ¶ 62.
13 See id. ¶ 60.
14 Proposition 8 prohibited same-sex marriage, relegating homosexuals to ‘‘domestic partnerships’’ and was approved by the California electorate with 52% of the vote in 2008. See Perry, supra note 6, at 109.
15 Griswold v. Connecticut, 381 U.S. 479 (1965) (establishing a constitutional right of privacy to be protected from governmental intrusion in a case involving a law prohibiting the use of contraceptive devices). Loving outlawed an anti-miscegenation statute that criminalized interracial marriage for violation of the Equal Protection clause. The U.S. Supreme Court rejected Virginia’s contention that the statute must be upheld if it serves a rational purpose. Instead, the Court held that racial classifications are subjected to the most rigid scrutiny and cannot be upheld unless they are necessary to accomplish some permissible state objective other than racial discrimination, which the Fourteenth Amendment was designed to eliminate. In Loving, the Supreme Court found that the racial classifications served no legitimate function other than invidious racial discrimination and held that freedom to marry cannot be restricted by racial classifications because this violates the central meaning of equal protection. These landmark cases stand for the proposition that fundamental rights may not be abridged by simply showing that a statute has some rational basis or relationship to affecting a state purpose. Instead, the state must show a compelling state interest, and the law must be necessary to accomplish that interest. When the American Civil Liberties Union filed a petition for certiorari in Loving in 1966, the highest courts of fourteen states had upheld the constitutionality of miscegenation statutes against attacks based on, inter alia, the Fourteenth Amendment to the U.S. Constitution. Only one state, California, had declared a miscegenation statute to be unconstitutional. See Perez v. Lippold, 32 Cal. 2d 711, 198 P.2d 17 (1948).
16 Perry, supra note 6, at 111.
17 Id. at 112; see also supra note 10.
18 Id. at 113.
19 Id. at 114.
20 Id. at 116-17.
21 Id. at 119.
22 For example, the European Court refused to interpret ‘‘the right to marry’’ in Article 12 as embodying a right to divorce in Johnston v. Ireland, 112 Eur. Ct. H.R. (ser. A) (1986), a case in which petitioners sought a right to divorce in order to marry the partners with whom they were living.
23 For example, in X, Y and Z v. United Kingdom, 24 Eur. Ct. H.R. 143 (1997), a female to male transsexual (X) co-habited with a woman (Y) who gave birth to Z by artificial insemination by a donor. X sought to be registered as Z’s father, but was denied because only a biological man could be regarded as a father. The European Court held that the refusal to register X amounted to a violation of private and family life (Article 8) and unlawful discrimination (Article 14).
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