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Unpublished Paper
SAME-SEX MARRIAGE: EUROPEAN COURT OF HUMAN RIGHTS’ JURISPRUDENCE AND CONFLICTS OF LAW - POSSIBLE MESSAGES FOR AND FROM THE SUPREME COURT OF ENGLAND AND WALES
ExpressO (2011)
  • Brigitte J Clark, Dr, University of East Anglia
Abstract

ABSTRACT As more legislatures adopt marriage-like alternatives to same-sex marriage, international (and interstate) conflict of law issues take on additional significance. This paper debates the outcome of an appeal to the Supreme Court of the United Kingdom against the ban on same-sex marriage, especially those marriages validly celebrated in other jurisdictions on the basis of rights enshrined in the European Convention of Human Rights (ECHR) and Charter of Fundamental Rights of the European Union, with some comparative reference to the relevant legal positions in the United States, Canada and South Africa. At present, although Strasbourg jurisprudence has recognized the right of same sex couples to respect for family life in terms of Article 8, it is not yet in favor of the recognition of their right to marry in terms of Article 12. However, this paper submits that this ban could be held to constitute a breach of both Articles 8 and 12 of the ECHR when read in conjunction with Article 14 of the ECHR (the right not to be subject to discrimination on the grounds of sexual orientation). The Supreme Court could issue a declaration of incompatibility with regard to the English legislation banning same sex marriage for homosexual couples. In view of the increased likelihood of success at Strasbourg and changing public opinion in this regard, the English legislature should take cognizance of any such declaration of its Supreme Court and review its law in this regard. With reference to the variety of legal positions on this issue in Canada, South Africa and the United States, the paper concludes that it is discriminatory not to recognize the valid marriages of those same-sex couples from other jurisdictions.

Keywords
  • Same-Sex Marriage,
  • Conflict of Laws,
  • Supreme Court of England and Wales,
  • European Court of Human Rights,
  • Full Faith and Credit Clause
Disciplines
Publication Date
May 25, 2011
Citation Information
Brigitte J Clark. "SAME-SEX MARRIAGE: EUROPEAN COURT OF HUMAN RIGHTS’ JURISPRUDENCE AND CONFLICTS OF LAW - POSSIBLE MESSAGES FOR AND FROM THE SUPREME COURT OF ENGLAND AND WALES" ExpressO (2011)
Available at: http://works.bepress.com/brigitte_clark/2/