To what extent has the European Court of Human Rights (ECHR’s) case law recognised and protected the right not to be discriminated against on the ground of sexual orientation, in relation to marriage.

AbstractThere has been much discussion as to whether the ECHRs attempts to select and protect the flop non to be discriminated against on the screen background of cozy preference put on been successful. This is because, although the UK has in recent historic period make positive changes towards the comparison of like-sex couples, discrimination is gloss over prevalent in umpteen other countries. This study aims to identify the close to which much(prenominal) discrimination still exists and consider how effective the ECHR has been in preserving these even offs.IntroductionIt entrust be examined the extent to which the European judgeship of Human Rights (ECHRs) case law has recognised and saved the full non to be discriminated against on the ground of versed orientation. This leave behind be examined in respect of said(prenominal)-sex marriages and by considering whether same-sex couples ar still universe discriminated against or whether the ECHR has been succe ssful in helping to protect the interests of such(prenominal) couples. variant case law of the ECHR go away be examined and a review of the donnish literature in this argona leave behind be conducted. These will be acquired by accessing relevant text books, journal articles, online databases and governmental reports. Once all in all the applic subject information has been ga thered an appropriate conclusion will thus be force demonstrating that the ECHR has made signifi croupt attempts to protect the in force(p)s of individuals when it comes to their sexual orientation. However, it will be demonstrated that whilst this has proven successful in the UK, other countries ar still reluctant to employ the ECHRs antenna.Literature ReviewThe pairing (Same Sex Couples) number 2013 came into force on the 13 March 2014 to let same sex marriages as this was previously prohibited under character 11 (c) of the Matrimonial Causes issue 1973. This prohibited led to much make do an d controversy for a number of years as it was felt that same-sex couples were creation discriminated against and that their right to equation, as provided for under Article 14 of the European conference of Human Rights 1951 (ECHR), as incorporated by the Human Rights exploit 1998, was world violated. This controversy occurred regardless of the fact that genteel partnerships were introduced under the Civil confederation Act 2004 since it was still universe argued that same-sex couples entering into a elegant partnership were not provided with the same rights and responsibilities as heterosexual couples under a civil marriage. Inequality therefore still existed as the status of marriage was not capable of cosmos acquired by same-sex couples. This was considered highly detrimental and it was argued by Francoz-Terminal that if at iodin clip homosexuality was considered as a choice that implied no procreation, nowadays ratified continuess nurture had to face a new real reality.1 This highlights the importance of equality and it seems as though there has never been more than of a pressing hire for the provisions contained in the ECHR to be implemented. not all agree that same sex-couples should have been permitted to marry rather than only if enter into a civil partnership, yet because of the increasing recognition of same-sex couples in many European countries it was evident that the permitting of gay marriages have been relevant when discussing reforms in England and Wales.2There was intelligibly a pressing need for reform in this area since the 2004 Act had proven ineffective in providing same-sex couples with equal rights to heterosexual couples when it came to marriage. Nevertheless, whilst it was argued by whatsoever that civil partnerships were simply marriages under a contrasting reference, this was not entirely true. This is because the equal rights and responsibilities that were give to heterosexual couples were not being given t o same-sex couples. For example, same sex couples were not includeed to get married in a church or other unearthly on the bag that these types of places are prohibited from conducting civil partnership ceremonies under the law. This was considered highly partial given that some(a) ministers were willing to marry same-sex couples however they were prevented doing so by law. Modern beliefs that all people should be treated equally were therefore not being ascertained and all of the handed-down views of marriage were upheld. not all agree with the new changes, however, as churches derriere still deflect to marry same sex-couples which leaves same-sex couples open to further discrimination.3 Yet, it is cogitated that the law should not enclose a persons choice and that churches ministers should still have the might to choose whether or not they would like to marry same-sex couples. This provides a fairer system overall because although some churches will permit same-sex marria ges whilst others will not, the fact that marriages deal be conducted in churches in the first place is a major step forward.4The debate as to whether same-sex marriages should be permitted has been going on for some time, and the tourist courts have attempted to protect an individuals right not to be discriminated against on cubic yard of sexual orientation on marriage. In The Attorney General for Ontario v M and H5 it was held by the court that tike governments are to take legislative action to ensure that individuals in same-sex relationships are afforded equal treatment with others in marriage-like relationships. Regardless of these views, it wasnt until the ECHR began to recognise such rights that Parliament decided to take action. In Schalk v. Kopf v. Austria6 it was made clear by the ECHR that a failure by a state to allow same-sex couples to marry amounted to a violation of the article 12 right to marry. This decision highlighted the need to make amendments to section 11 (c) of the 1973 Act so that same-sex couples were not being discriminated against on the root of their sexual orientation when it came to marriage. It was quite surprising when the 2013 Act was implemented given the widespread concerns that existed and as put by Norrie the throw out of kilter with gay and lesbian people is that they are never satisfied. Give them a crumb and they want a swing of bread. Give them a slice of bread and they want a full meal.7 Nevertheless, although changes were made under the 2004 Act to provide same sex couples with equal rights to heterosexual couples, the ECHR did not believe that this went far enough and still found that discrimination subsisted.It could be utter that civil ceremonies were the same as marriages, yet because the nature of the ceremonies were different as well as the rights that were provided to married couples, it was clear that further changes were needed if grapple equality was to be attained. It was argued by Eireann that the 2004 Act was akin to marriage in that it allowed same-sex couples to formally declare their allegiance to each other, register their partnership and leave themselves to a range of duties and responsibilities.8 On the other hand, because equality of choice and chance was removed from same-sex couples, their rights under the ECHR were not being richly recognised9, which is why drastic changes to the law were implemented in 2013. Whether all 47 countries will copy the ECHRs decision in Schalk is questionable10, given the political backlash that some countries will be subjected to. Although the ECHR is of the view that same-sex marriages should be permitted, they are besides certified of the fact that not everyone agrees with this position. As a firmness, they made it clear in their judgment that the choice to marry same-sex couples should still remain with the minister conducting the Lords Supper and that the rights of ministers should overly be upheld.11 Therefore, whils t it is important that the rights to equality are being retained when it comes to the marriage of same-sex couples, it is also important that the rights of ministers not to be discriminated against if they choose not to marry such couples are also preserved.The ECHR has made great attempts to recognise and protect the rights of individuals not to be discriminated against on grounds of sexual orientation over the years, which is enunciated in various case law decisions. An example of this can be seen in the Niemietz v Germany12 case where it was made clear that the right to a private life under Article 8 of the ECHR include the right to establish relationships with other human beings regardless as to whether they were of the same sex or not. Therefore, the fact that there were laws against same-sex marriages demonstrated that the right to a private life under this Article was also being violated. This was also identified in Bensaid v join Kingdom13 where the court held that gender identification, name and sexual orientation and sexual life were all capable of security under Article 8. Arguably, the ECHR has been a pioneer for same-sex relationships for some time and has clearly made significant attempts to eradicate discrimination on the basis of sexual orientation. In Mata Estevez v Spain14 the Court held that same-sex relationships could be protected by the right to respect for private life, although it was held that homosexual relationships could not be protected by the right to a family life. However, this has since been resolved in the Schalk case above. The Schalk case is a major development within this area of the law, yet because many states have not yet legalised the marriage of same-sex couples it is manifest that the development of this area does remain ongoing.It remains to be seen what changes, if any will be made by other Member States because although this was a positive decision inferences were not drawn by the Court. This leads to confusion as to whether puzzling all States should follow grammatical case and as has been noted the door may have been unlocked only when remains closed (or half open) for now?15 Consequently, even though same sex marriages are now being permitted in the UK, inequality will still exist by the ability for ministers to refuse to marry same-sex couples. Whether this will ever be changed is doubtful since all individuals still have the right to freedom of belief and religion under Article 9 of the ECHR. Hence, there will still be many churches that will refuse to allow such marriages to take place, yet nothing can be make to stop this as this too will result in a violation of human rights. At present an attempt to strike a balance between these competing interests has been made and it is unlikely that discrimination on the grounds of sexual orientation with regards to marriage will ever be fully eradicated. quieten, the rights same-sex couples have to marry has increased substantially over t he years, though there will continue to be different views in relation to the espousal of such marriages by society. Every person has a right to have an opinion and by forcing ministers to conduct same-sex marriages would seriously contravene. In addition to the UK, Belgium, the Netherlands and Canada, also allow same-sex marriages to be conducted, which demonstrates the movement that is being made towards achieving greater equality across the globe.This is believed highly desirable and as noted by the court in Fourie and Another v Minister of interior(a) Affairs and Others16 the terminus ad quem of marriage to opposite sex couples was unconstitutional. Same-sex marriages should therefore be recognised in all countries as societal views are continuously changing and same-sex couples are starting to become the norm. It is questionable whether this will be implemented by all and as stressed by Herring the tensions between the traditional family ideal of what a family should be like and the realities of family life today suggest that family law is quite different from family law 30 years ago and where family law will be in 30 years time is hard to predict.17 Now that same-sex couples are able to marry under the 2013 Act, such couples are now able to claim a family status. This is necessary given that there is no institution of a de facto family as pointed out in McD v L & Another.18 It is thus in the best interests of a sister to be served in a marriage-based family and because same-sex couples can adopt, it is necessary for them to be able to marry also N and Another v wellness function Executive & Ors19 Nevertheless, because same-sex marriages are not permitted in all countries, such as France, it cannot be said that the ECHRs approaches have been completely successful. It was recognised by Francoz-Terminal that the emergence of same-sex families has been challenging for French Law, yet it has been said that the courts do rattling seem prepared to meet these challenges.20Attitudes towards same-sex marriages have changed considerably over the years and are likely to continue to do so until such marriages are considered a normal part of society. As a result, the married family can no longer be assumed to be the near-universal institution of civil society it once was.21 Because of the changes that continue to be made within society, it is resilient that the law is able to keep abreast with such changes which can be achieved by making sure individuals are not discriminated against on the basis of their sexual orientation. Conversely, it has been said that marriage is being undermined as a result of this,22 yet the courts should not be able to interfere in ones beliefs as shown in Burden and Burden v UK.23 The right to marry is enshrined in human rights law and is thereby considered a wakeless part of the freedom of the individual to form personal relationships according to his or her own inclination.24 Resultantly, individuals shou ld have the right to marry whoever they wish regardless as to whether they are of the same-sex or not, though it remains to be seen whether other European countries will adopt the same approach as the UK in defend such rights.Conclusion Overall, it is evident that the ECHR has recognised the rights of same-same couples for a number of years and has made great attempts to recognise and protect the right not to be discriminated against on grounds of sexual orientation. Nevertheless, it is only recently that the UK has implemented changes to study the stance taken by the ECHR by enacting the Marriage (Same Sex Couples) Act 2013. This Act makes it permissible for same sex couples to marry in religious settings. Although the Civil Partnership Act 2004 was said to provide similar rights, these were not considered enough and same-sex couples were still being subject to much discrimination. Since the 2013 Act was implemented, greater equality is now capable of being attained in the UK. Th e ECHR in Schalk is considered a major breakthrough in this area as this decision is what sparked the introduction of the new law. Nevertheless, because not all countries have followed the same approach as the UK, the ECHR still has some way to go in attaining equality for all. This is likely to prove difficult given the divergence of opinions that exist in this area, yet because the marriage of same-sex couples is becoming the norm, it is likely that other European countries will follow suit. The fact that ministers are able to choose whether or not to conduct same-sex marriages also ensures that their rights are also being protected. This maintains a balance between the rights of individuals not to be discriminated against on grounds of sexual orientation with the rights of belief and opinion.BibliographyBooks Herring, J. Family Law, Longman, 4th Edition, (2009).Lowe, N. and Douglas, G. Bromleys Family Law, OUP Oxford, 10th Edition, (2006).Probert, R., Family Law in England and Wa les, Kluwer Law International, (2011).Standley, K. Family Law, Palgrave MacMillan, 7th Edition, (2010).Troyer, L. 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