The European Court of Human Rights ruled on Tuesday that international human rights law requires governments to provide legal recognition for same-sex couples.
The decision came in a lawsuit called Oliari and Others v. Italy. It was brought by three same-sex couples against the government of Italy, which is the only country in Western Europe that has no legal recognition for same-sex couples.
This is the first time that the court has ruled that partnership recognition is a right under the European Convention on Human Rights, and it is technically binding not only throughout all of the E.U. but also to countries hostile to LGBT rights that have signed onto the European Convention on Human Rights such as Russia and Turkey. However, countries including Russia and the United Kingdom have disregarded certain rulings of the court despite the treaty obligations.
The court ruled that although states should be allowed flexibility to decide how to handle the question of rights for same-sex couples, Italy violated the article of the European Convention on Human Rights establishing the "right to respect for private and family life" by failing to provide a "specific legal framework providing for the recognition and protection of their same-sex unions."
The ruling comes as the government of Italian Prime Minister Matteo Renzi has struggled for more than a year to pass a civil union bill modeled on Germany's. Italy's top courts have ruled repeatedly since 2010 that same-sex couples are entitled to partnership recognition, but the courts lack the power to change the law and kicked the question back to parliament. The junior minister in Renzi's government leading the civil union push, Ivan Scalfarotto, launched a hunger strike earlier this summer out of frustration with parliament's inaction on the legislation.
The seven judges were unanimous in ruling Italy must establish civil unions, although three signed a concurring opinion arguing to limit its impact on other states. Rather than holding that the European Convention on Human Rights creates a right to partnership recognition, these judges essentially argued that Italy was in violation only because the parliament had failed to comply with the rulings of its own courts.
The majority held that states still had flexibility to determine "the exact status conferred" to same-sex couples and "the rights and obligations" that partnership status created. However, the court held that "the core protection of the applicants as same-sex couples" is considered "facets of an individual's existence and identity to which the relevant margin should apply."
The Oliary decision stopped short of overturning its 2010 ruling, Schalk and Kopf v. Austria, in which it ruled that European Convention on Human Rights did not obligate states to establish marriage equality. But the court seemed to hold open the door to returning to that question in the future, noting that today 24 of the 47 signatory states to the Convention have established civil unions or marriage equality, as well as the recent judicial decisions in the United States and Brazil recognizing a right to marriage equality.
The decision said that "Court cannot but attach some importance" to " the continuing international movement towards legal recognition" for same-sex couples. But even though 11 signatories to the European Convention on Human Rights now have marriage equality — as compared to just six when Schalk was handed down — there was still not sufficient consensus to require all signatories to do the same.
Despite the "gradual evolution of States on the matter," the court wrote, the judges reiterated that the "Convention does not impose an obligation on the respondent Government to grant a same-sex couple like the applicants access to marriage."
J. Lester Feder is a world correspondent for BuzzFeed News and is based in Washington, DC. His secure PGP fingerprint is 2353 DB68 8AA6 92BD 67B8 94DF 37D8 0A6F D70B 7211
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