European Court Rules Civil Unions Cannot Exclude Same-Sex Couples

“We're still strivin' for the sky, no taste for humble pie”

In Case of Vallianatos and Others v. Greece, the European Court of Human Rights ruled by a vote of 16-to-1 on November 7, 2013, that Greece violated same-sex couples’ right to equality taken in conjunction with their right to respect for private and family life by excluding same-sex couples from the civil unions Greece adopted in 2008 for “de facto partnerships” of different-sex couples.  Each of the plaintiff couples was awarded 5000 Euros compensation for the non-monetary harms they suffered from the discriminatory exclusion.

The Greek civil unions law was enacted to provide a more flexible legal framework than marriage for cohabiting couples and the children of those couples who were raising children.  Other than Lithuania, Greece is the only country in the Council of Europe to “provide for a form of registered partnership designed solely for different-sex couples, as an alternative to marriage (which is available only to different-sex couples).”

The Court reaffirmed that same-sex couples “are in a comparable situation to different-sex couples as regards their need for legal recognition and protection of their relationship.”  Yet the civil unions law treats them differently based on their sexual orientation, the Court ruled.  (Thus far U.S. courts have largely recognized that marriage laws limited to different-sex couples embody sexual orientation discrimination, rejecting the shallow argument that they don’t because a gay man could marry a woman and a lesbian could marry a man.)   This sexual orientation discrimination required justification.  Greece chiefly relied on asserted interests in the protection of non-marital children and “strengthening the institutions of marriage and the family in the traditional sense.”  While the Court accepted that protecting “family in the traditional sense” was a legitimate aim, the sexual orientation discrimination in the law meant that the exclusion of same-sex couples from civil unions had to be “necessary” to serve those interests.

Looking at the actual provisions of the civil unions law, the Court concluded that it “was primarily aimed” not at regulating child-rearing but “at affording legal recognition to a new form of non-marital partnership.”  For example, different-sex couples could enter civil unions regardless of whether they had children.  Same-sex couples, in contrast, had no options under Greek law for having their relationship legally recognized.  This conflicted with an emerging trend in the law of European Union member countries, nine of which allowed same-sex couples to marry civilly and seventeen of which provided for “some form of civil partnership for same-sex couples.”

Judge Paulo Pinto de Albuquerque, a member of the Faculty of Law of the Catholic University of Portugal, dissented in part because he believed the same-sex couples should have been required to “exhaust their remedies” by first presenting their claims to the courts of Greece.

"Every male has a choice about where he puts his penis."

The British House of Lords today ruled 3-2 that conviction of a male for "rape of a child under age 13" when he, at age 15, had what was accepted in this posture as consensual peno-vaginal intercourse with a 12-year-old female, did not violate the European Convention on Human Rights provision (article 8) guaranteeing respect for private life.

Over the dissents of Lord Hope of Craighead and Lord Carswell, a majority consisting of Lord Hoffman, Baroness Hale of Richmond, and Lord Mance ruled that, given the way the case arose (where the complainant after the defendant was charged admitted lying about her age and later in the proceedings expressed her satisfaction with a guilty plea entered on the basis that the two of them had consensual sex, so that she did not have to testify in court), the crown was not required to proceed against the defendant on the basis of a different section of the Criminal Offences Act of 2003 criminalizing "sexual offences committed by persons under 18," which carries lower penalties and did not bear the term "rape" in its title. The majority believed that the defendant's main objection, since the Court of Appeal had reduced his sentence, was the stigma of the term "rape." But they did not believe that sufficient to violate the defendant's article 8 right to respect for his private life.

Baroness Hale, speaking somewhat plainly, also took pains to reject the characterization of section 5 of the Act as a "strict liability" crime that the Lords were somehow improperly upholding:

The perpetrator has to intend to penetrate. Every male has a choice about where he puts his penis. It may be difficult for him to restrain himself when aroused but he has a choice. There is nothing unjust or irrational about a law which says that if he chooses to put his penis inside a child who turns out to be under 13 he has committed an offence (although the state of his mind may again be relevant to sentence). . . . The object is to make him take responsibility for what he chooses to do with what is capable of being, not only an instrument of great pleasure, but also a weapon of great danger.