The ECtHR continues pushing a flawed concept of “family life”

ecthrThe European Court of Human Rights (ECtHR) has today released its decision in the case of Pajić v. Croatia, in which it continues its policy of promoting an erroneous concept of “family life”, condemning Croatia for not a having granted to the applicant, a national of Bosnia and Herzegovina, a residence permit in Croatia on the grounds of” family reunification” with her same-sex “partner”. It is by now an established doctrine of the Court, albeit completely without basis in the text of the European Human Rights Convention, that same-sex couples should be treated in the same way as unmarried different-sex life partners.

In keeping with Article 12 of the Convention, the ECtHR still considers that “marriage” means only the union between a man and a woman, and it allows Convention States to treat marriage in a specific and privileged way. Homo-activists are desperately trying to change this through so-called “strategic litigation”, but it will be difficult for the Court to satisfy their demand, given the increasing number of Council of Europe Member States that have changed, or are in the process of changing, their constitutional laws in order to make it evident that the sad decision of some countries to re-define (and thus destroy) the institution of marriage is not a general trend in Europe. Using the argument that unmarried same-sex couples are like unmarried different-sex couples is thus the backdoor through which the ECtHR tries to impose same-sex “marriage” in all but name.

As is by now habitual with the ECtHR, today’s judgment is devoid of any serious-minded and principled legal reasoning. It just repeats, in the Court’s typical idiosyncratic and self-referential way, the erroneous affirmations that were made in previous judgments, but that are un-supported by the law, un-supported by States’ practice in interpreting the law, un-supported by any reasonable ethical argument, and indeed not supported by anything except the esoteric homo-ideology that the Court, for some mysterious reason, has chosen to embrace just a few years ago.

The decisive question in this judgment is the notion of “family life”, and the decisive passage is this:

63. In this connection the Court reiterates its established case-law in respect of different-sex couples, namely that the notion of “family” under this provision is not confined to marriage-based relationships and may encompass other de facto “family” ties where the parties are living together out of wedlock (see Schalk and Kopf v. Austria, no. 30141/04, § 91, ECHR 2010). In contrast, the Court’s case-law has for a long time only accepted that the emotional and sexual relationship of a same-sex couple constitutes “private life” but has not found that it constitutes “family life”, even where a long-term relationship of cohabiting partners was at stake. In coming to that conclusion, the Court observed that despite the growing tendency in a number of European States towards the legal and judicial recognition of stable de facto same-sex partnerships, given the existence of little common ground between the Contracting States, this was an area in which they still enjoyed a wide margin of appreciation (see Mata Estevez, cited above, with further references).

64. However, in P.B. and J.S. v. Austria and Schalk and Kopf the Court noted that since 2001, when the decision in Mata Estevez was given, a rapid evolution of social attitudes towards same-sex couples has taken place in many member States. Since then, a considerable number of member States have afforded legal recognition to same-sex couples. Certain provisions of European Union law also reflect a growing tendency to include same-sex couples in the notion of “family” (see paragraphs 36-37 above). In view of this evolution, the Court considered it artificial to maintain the view that, in contrast to a different-sex couple, a same-sex couple could not enjoy “family life” for the purposes of Article 8. It therefore held that the relationship of a cohabiting same-sex couple living in a stable de facto partnership fell within the notion of “family life”, just as the relationship of a different-sex couple in the same situation would (see P.B. and J.S. v. Austria, no. 18984/02, §§ 27-30, 22 July 2010; and Schalk and Kopf, cited above, §§ 91-94).

65. The Court further explained in Vallianatos that there can be no basis for drawing a distinction between stable same-sex couples who live together and those who – for professional and social reasons – do not, since the fact of not cohabiting does not deprive the couples concerned of the stability which brings them within the scope of family life within the meaning of Article 8 (see Vallianatos and Others, cited above, § 73).

Now this is quite a concentrated dose of non-sense, which certainly does not become sensible merely by being repeated.

In the first place, it should be noted that Schalk & Kopf was not about whether homosexual relationships constitute a form of “family life” under Article 8 of the Convention, but about whether same-sex partners had a “right to marry and found a family” under Article 12 of the Convention. The Court rightly decided that they didn’t.

The passage in § 91 of the Schalk & Kopf judgment, which the Court is repeating here, was a mere obiter dictum, which was not need for, and had not much to do with, the matter that needed to be decided. It stems from a Chamber judgment (as opposed a Grand Chamber decision), did not unfold any legally binding effect, and cannot therefore be described as “established case-law”.

Besides being an obiter dictum, the argument that it brings forward is “that a rapid evolution of social attitudes towards same-sex couples has taken place in many member States”, and that “a considerable number of member States have afforded legal recognition to same-sex couples”, culminating in the assertion that “certain provisions of European Union law also reflect a growing tendency to include same-sex couples in the notion of ‘family'”. This is hardly a legal argument. Indeed, the Court’s blabbering about the evolution of social attitudes is sociology without field research, done by hobby-sociologists. From a legal point of view, it is hard to see – and no argument was made – why the policies adopted by “a considerable number of member States” should lead to an obligation for other member States to adopt the same policies.

Given that the above-quoted passage in Schalk & Kopf was only an obiter dictum, there was no need for it to be accompanied by proper legal reasoning. But the Court never took the pains of offering sound legal reasons when, at later occasions, it referred to that passage. This being so, it today still cannot be said that this obiter dictum is “established case-law”. In reality, it is non-sense without a legal basis.

As regards the “evolving social attitudes” and their reflection in the legislation adopted by a considerable number of Member States, the Court, if it is not completely blinded by its ideology, should be aware that 16 Member States have constitutional provisions defining marriage as (only) the union of a man and a woman. Most of these provisions were adopted quite recently – indeed in order to set an obstacle to the ECtHR’s unasked-for and extravagant tendency to push for the legal recognition of same-sex “families”.

The reference to a uniform trend in social attitudes and legislative trends is thus contra-factual to the point of being ridiculous. But even if (quod non!) such a clear trend existed, it would not suffice to justify a radical re-interpretation of a Convention provision, which previously (as the Court rightly informs) was not interpreted that way.

It certainly does not help the credibility of the Court’s own “rapidly evolving” attitudes that in Schalk & Kopf the term “family life” was applied to “stable same-sex relationships” in view of their “stability”, whereas in Vallianatos it was decided that this stability did not imply to live together. This is once again one of those strange “negative definitions” that are so typical for the ECtHR’s aberrant interpretations of the law: we only learn what “stability is not about (i.e., it has nothing to do with “living together”), but we still have no clue what it actually is.

But the fundamental problem with the ECtHR’s false interpretation of “family life” is that it leads to an apparent contradiction within the Convention itself, i.e. between its Articles 12 and 8. Article 12 creates a clear link between marriage and the founding of a family. The Convention is to be read as a whole, and if in Article 12 only a man and a woman can together found a family, then the term “family life” in Article 8 can only refer to a family founded by a man and a woman.

Today’s decision evidences once more the importance of the upcoming European Citizens’ Initiative Mum Dad & Kids, which, in the legislative proposal it promotes, clarifies the notion “family relationship” that the ECtHR is taking such efforts to dilute. It is, in this context, quite interesting to note that the European Commission, in registering this initiative, considered that it was not in contradiction to the EU’s fundamental values or to human rights…