ABSTRACT

This contribution demonstrates through an analysis of the case law of the European Court of Human Rights (ECtHR) and the European Court of Justice of the European Union (CJEU) that both courts are exercising judicial restraint when dealing with the topic of equal marriage rights, and explains that this is due to the sensitivity of the topic, the divergent views between the Member States on equal marriage rights and the credibility, authority and legitimacy issues both courts face as a result of this. Both courts try to strike a balance between, on the one hand, providing protection to lesbian, gay, bisexual, and transgender (‘LGBT’)-individuals suffering from human and fundamental rights violations, and, on the other, the rights of the Member States in protecting their State interests, while simultaneously dealing with religious views, politics, national interests and nationalist ideologies. This puts both courts in quite a ‘Catch 22’. Perhaps the emphasis should not be on equality itself, but on urging the courts to provide coherency and consistency in their judgments in the form of an ‘equal level playing field’. Such would entail the application of strict scrutiny and non-discrimination more explicitly, and request from States weighty reasons to justify differential treatment on the basis of sexual orientation. This will most likely take away some of the pressure of the ‘Catch 22’ and hopefully provide relief to not only those that seek justice, but the European legal order as a whole.