European Consensus Facing an East-West Divide: From the Recent Echr Jurisprudence on Prohibition of Sexual Orientation Discrimination

In 2013, the European Court of Human Rights has made two audacious decisions to draw a bottom line on the difference in treatments between opposite-sex and same-sex couples. Following X and Others v. Austria and Vallianatos and Others v. Greece judgements, seven countries were expected to modify their discriminatory domestic laws. However, only Austria has yet made it to comply with the Strasbourg norm. Furthermore, while debates on whether same-sex couples, once legally recognised, should enjoy exactly the same rights as opposite-sex couples in Western Europe, movements defending traditional marriage seem to be on the rise in Eastern countries.

Facing a Europe divided on a right of family life without discrimination on the ground of sexual orientation, what king of messages did the Strasbourg Court wish to send to its 47 member States though its both 2013 judgments? The decisions should not have been made purely upon legal analysis, taking into account of the Strasbourg practices of dialogue between judges. Actually the principle of European consensus has been maintained in both Strasbourg decisions, and there is still no such right to marriage accessible to all. Besides, the Strasbourg judges are not isolated, at least there are German and Austrian constitutional courts that have also been trying to equalise marriage and registered partnership. If national courts are willing to follow the decisions, as it did happen in the U.S. after the Supreme Court's United States v. Windsor decision, it can be a solution while the legislators are reluctant to change.