Abstract

It is generally accepted that the European Court of Human Rights (ECtHR) has strongly established in its jurisprudence that distinctions based on sex or sexual orientation that are created by laws that restrict marriage and its rights and benefits to opposite-sex couples do not amount to violations of the European Convention on Human Rights (ECHR). In this article, I reappraise recent judgments by the ECtHR to demonstrate aspects of its jurisprudence that embody a more progressive approach to the legal organization of marriage and the difference in treatment that this often creates on the grounds of sexual orientation. Through a critical evaluation of ECtHR jurisprudence on de facto marriage, I argue that the ECtHR has made an important contribution to challenging the heteronormativity of legal regimes that seek to deny rights and benefits to same-sex couples on the basis of the assertion that they do not approximate marriage-like relationships. I suggest ways in which this might inform a further evolution in ECtHR jurisprudence to extend the right to marry guaranteed by Article 12 of the ECHR to same-sex couples.

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