Perhaps Hera, the ancient Greek goddess of marriage, could have avoided her numerous jealousy outbreaks had she rather entered into a “civil union” with Zeus, the god of many things but marital fidelity. This is because, as the Greek government argued before the European Court of Human Rights on January 16, 2013, the legal concept of a “civil union” does not require faithfulness or mutual assistance from those different-sex couples who may opt for them. Really, “civil unions” are not even unions per se. Indeed, the government fails to see any added value for same-sex couples (whose relationship lacks any legal recognition in Greece, an EU country) were the institution to be opened up for them.
At the hearing of the case of Vallianatos and Mylonas v. Greece and C.S. and Others v. Greece in Strasbourg, four Greek same-sex couples disagreed, arguing that the Greek government’s decision to exclude them from the institution of civil union constituted a breach of the European Convention of Human Rights. They argued that excluding same-sex couples from the protections of a parallel legal scheme of marriage—the civil union—constitutes both discrimination on the basis of sexual identity, and a violation of the right to respect for private life.
It is important to emphasize that this case does not revolve around the question of whether or not a member state of the Council of Europe is obligated to recognize the relationship of same-sex couples in the form of civil marriage or any official alternative to that. It is clear from the court’s case-law that they are not. States usually enjoy a wide margin of appreciation, that is, they have a greater discretion, when it comes to regulating issues there is no European consensus on. As noted in Schalk and Kopf v. Austria of 2010, and reiterated in other decisions since, even though same-sex couples in a stable relationship fall within the notion of “family life” and “there is [a rapidly] emerging European consensus towards legal recognition of same-sex couples,” there is still no consensus on the issue, for in a majority of Member States such recognition is lacking (see paras 94 and 105 of the decision).
This European consensus is likely to emerge soon. Currently there are 22 (out of 47) Council of Europe states that grant some kind of legal recognition to same-sex couples, either in the form of marriage or an official alternative to it. Discussion on the issue is underway in numerous other countries. (Even the Court in its recent Eweida and Others v. the United Kingdom ruled that religious convictions could not justify discrimination on the basis of sexual orientation in the particular instances in question.)
However, 25 states still deny legal recognition to same-sex couples, and thus, European consensus, as it currently stands, seems to be on Greece’s side on this issue. How could the state’s decision not to grant same-sex couples access to “civil unions” be challenged then?
What sets Greece apart, as the applicants reasoned, is the fact that it is the only Council of Europe Member State that has voluntarily created an official alternative to civil marriage and then deliberately excluded same-sex couples from its protections. Nowhere else in Europe is there a state with a parallel institution to marriage that would bar couples of the same sex from the rights it offers. Therefore, there exists a strong consensus among those European states that have chosen to recognize the stable de facto partnerships of couples in the framework of an institution separate from civil marriage: same-sex couples should be granted access to this legal regime’s symbolic as well as substantive protections. In this sense, Greece is a clear outlier.
And the Greek state is aware of this. The Greek government’s arguments at the hearing, at times reaching the level of ludicrousness, centered around the differences that set the country’s “civil unions” apart from other comparable legal schemes in the Council of Europe.
The court was informed that Greek “civil unions,” as opposed to those in other countries, were actually created in order to allow for the establishment of a presumption on the paternity of children. Marriage used to fulfill this function; however, the institution is reportedly in decline in Greek society – ironically enough, because different-sex couples “perceive it as a restriction on their freedom.” As same-sex couples’ sexual relations cannot lead to the birth of a child, there is no pressing social need to regulate their relationships. And after all, no common European approach existed on legal schemes of same-sex relationships anyway. If Greek same-sex couples wanted to regulate their life together, they were free to do so through contractual means. In summary, all is well the way it is.
Except, as the other side argued, the “civil unions in lieu of paternity tests” argument had never been raised by the state before; there is indeed a consensus in member states that choose to create parallel legal regimes to marriage that the institution should be open to same-sex couples; and contracts between same-sex partners can be, and have been, easily torpedoed by Greek courts due to loopholes in the legislation. Not to mention the enhanced financial burdens that result from such arrangements. Excluding same-sex couples from “civil unions,” and thus leaving them in a legal no-man’s land is clearly discrimination on the basis of sexual orientation, the applicants argued, which is prohibited under the European Convention of Human Rights.
And as for “the pressing social need,” altogether 16 “civil unions” have been conducted since 2008 when they were created. This is only four times the number of people currently seeking access to the institution.
What took place at the hearing could be viewed as the epitome of a failed attempt by a government that was trying to defend a law clearly indefensible. Let us hope that the Grand Chamber heeds the applicants’ warning. Limiting “civil unions” to different-sex couples without any particularly serious reason for doing so should be unacceptable in today’s Europe.