The family constituted by marriage and/or children
The European Convention on Human Rights (the Convention) protects “private and family life” in the same provision (Article 8), along with the home and correspondence. However, the Court has progressively distinguished the protection of private life from that of family life. Private life is a broad concept which does not lend itself to an exhaustive definition. The essential goal of the protection afforded by it is to protect the individual from the arbitrary interference of the authorities and it may in addition create positive obligations inherent in an effective "respect" for private life (Olsson v. Sweden, No. 10465/83, 24.03.1988). As for the protection of family life, it focuses primarily on the relationship between children and their parents. According to the traditional case law of the Court, the right to respect for family life "presupposes the existence of a family" (Marckx v. Belgium, No. 6833/74, 13.06.1979, § 31) or of a potential relationship that could have been developed, for example, between a natural father and a child born out of wedlock (Nylund v. Finland, No. 27110/95). Thus, the Court considered that in the absence of marriage it is the existence of a child which was constitutive of family life (Johnston v. Ireland, No. 9697/82, 18.12.1986). Unmarried couples without children could not claim the benefits of the protection afforded to families (Elsholz v. Germany [GC], No. 25735/94, 13.07.2000).
Similarly, the Universal Declaration of Human Rights protects each person against “arbitrary interference with his privacy, family, home or correspondence” as well as against “attacks upon his honour and reputation” (Article 12).
As was solemnly stated in various international instruments, the family is recognised and protected as a "fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children" (Preamble to the Convention on the Rights of the Child). The protection does not target the couple but the family which “is entitled to protection by society and the State" (Article 16§3 of the Universal Declaration of Human Rights and 23§1 of the International Covenant on Civil and Political Rights) "while it is responsible for the care and education of dependent children" (Article 10§1 of the International Covenant on Economic, Social and Cultural Rights). In fact, the recognition given by society to the couple results from its contribution to the common good through the foundation of a family; not by the existence of feelings between those constituting the couple which comes within the scope of private life.
While the Court has long retained this natural understanding of the relationship between the family and society, the evolution of morals has led to the reconstruction of this relationship. Certainly, the emergence of “LGBT rights” has actively contributed to the upheaval of the legal understanding of the family. However, the cause of this upheaval is more to be seen in the emergence of a right to the social recognition of emotional relationships and marriage, conceived as an autonomous value, like an individual freedom independent of its social purpose, which is now the foundation of the protection of the family.
“LGBT rights”: from private to family life
The history of the case law on "LGBT rights" is in part the story of the passage from protection under private life to protection under family life. Even though, initially, the Court accepted the criminalisation of homosexual relations (e.g. Dec. ECHR No. 104/55, 17.12.1955, No. 7215/75, 7.07.1977), it subsequently considered that ultimately these relations should be ignored by the law and are covered by the protection granted to private life. Thus the Court censured interferences of the State, particularly those concerning the criminalisation of homosexual relations between adults (Dudgeon v. UK, No. 7525/76, 22.10.1981). It is only in combination with the principle of non-discrimination, in comparison with heterosexual persons or couples that the invocation of the protection of private life made it possible to protect the rights of homosexual persons. For example, it was thus used in the allocation of parental authority (da Silva Muta v. Portugal No. 33290/96, 21.12.1999) or in the authorisation to adopt children (Fretté v. France, No. 36515/97, 26.02.2002). In the case of Kerkhoven and Hinke v. Netherlands (No. 15666/89, 19.05.1992), the Commission refused to equate a stable relationship between two women and a child born to one of them to family life, only granting this relationship the protection of private life.
It was with the decision of Schalk and Kopf v. Austria (No. 30141/04, 24.06.2010) that the Court modified its position stating that homosexual relationships exceeded the scope of private life and warranted public recognition, no longer in the punitive aspect, but as a legitimate family lifestyle. Having regard to the legislative developments in Europe, the Court judged that the relationship of a "cohabiting same-sex couple living in a stable de facto partnership (…) falls within the notion of “family life”, just as the relationship of a different-sex couple in the same situation would”(§ 94) and not only in the field of private life.
Since the decision of Schalk and Kopf the stable cohabitation of the members of the couple is sufficient to constitute family life, marriage or the presence of a child no longer being necessary. With the Vallianatos decision even cohabitation is no longer necessary according to the Court as "individuals of full age, who, (…) are in same-sex relationships and in some cases cohabit" also lead a family life (§ 49). It is true that the Court has never considered cohabitation necessary in cases where the spouses were married or divorced, or if there was a child, because it is marriage or the child which establishes family life.
This development was initiated by Goodwin v. United Kingdom (No. 28957/95, 11.07.2002) in which the Court held that the right to marry exists independently, irrespective of the family. The Court has thus abandoned the idea according to which marriage is the form and the family is the substance, of a unique "right to marry and to found a family." Marriage has become a substantial asset and a right in itself, by its social and symbolic dimension, regardless of its first concrete purpose as considered by the law.
Having established the principle of equivalence under the protection of family life between a same-sex couple without children and a biological family, the Court draws the consequences of this: for example in Schalk and Kopf and Vallianatos concerning the legal recognition and protection of the relationship or in the case of X and others in relation to the ability to raise a child. The Vallianatos case, following the decision of X and others (§146) is an application of this abstract egalitarian logic which reduces the biological (objective) differences between a same-sex couple and a biological family to a simple (subjective) difference of sexual orientation which is unable to justify, in itself, a difference of treatment.
A family life without objective content
Finally, at this stage of the evolution of the case law, what is the content of family life under Article 8? Do we know yet, since from now on family life requires neither public engagement, nor the presence of a child, nor even cohabitation in order to exist. Is “family life” under Article 8 of the Convention characterised by the existence of feelings? But, the law has always ignored feelings, considering them to fall within the scope of private and not family life, just like consensual sexual relations between adults (except in special cases). Is it then the stability of the relationship (Vallianatos, §73)? But that is a relative criterion. Two related cases reinforce the observation that the objective definition of family and family life has been lost.
In the case of Burden v. United Kingdom (No. 13378/05, 29.04.2008), the situation of two unmarried sisters who had always lived together was compared to that of other same-sex couples, the former not being allowed to enter into a civil partnership and benefit from the exemptions in the area of inheritance law attached thereto. Without having determined whether the sisters led a family life the majority of the Court held the situations to be non-comparable because partnership is forbidden for "persons who have close family relations" (§ 62). The Court added: “Rather than the length or the supportive nature of the relationship, what is determinative is the existence of a public undertaking, carrying with it a body of rights and obligations of a contractual nature” (§65). Yet the sisters complained of precisely the same thing as in the Vallianatos case: not having access to partnership for an unjustified reason, and the Court did not say what in the facts justified this difference. Nevertheless we can retain from the Burden case that, for the Strasbourg judges, "the length or the supportive nature of the relationship", in other words its stability, is not determinative.
While in the Burden case the Court did not mention sexuality, the Court did so in the case of Stübing v. Germany (No. 43547/08, 12.04.2012) in refusing to recognise that a brother and sister living with their four children, could claim the protection granted to family life, on the grounds of the European consensus condemning incestuous relations (§ 61).
An arbitrary definition of the family
Finally, since we have renounced marriage or the presence of a child as a criterion of family life, it seems to be difficult to establish other objective, and therefore non-arbitrary, criteria. Several dissenting judges have substantially criticised the Burden decision as being arbitrary because it is purely positivist. But who decides the existence of a family life if the facts are not decisive? Is it the judge, the law or the people involved in the relationship? If the decision belongs to the judge and the law, it will therefore be contingent and relative to cultural developments.
Any person claiming to lead a family life could assess as arbitrary their inability to enter into a civil partnership. Thus, the Greek law does not allow more than two people to contract even though the Court has recognised that a polygamous family leads a family life (Serife Yigit v. Turkey, No. 3976/05, 2.11.2010, § 90). Similarly, several European countries reserve civil partnership to same-sex couples, thus creating a new type of discrimination against different-sex couples.
In the near future, on the occasion of two cases currently pending before the Strasbourg Court (Oliari and A. v. Italy and Felicetti and Others v. Italy; Francesca Orlandi and Others v. Italy), the Court may extend the Vallianatos case law by affirming that all couples leading a family life must, without discrimination based on sexual orientation, be able to obtain official recognition of their relationship as long as a similar recognition is offered to certain couples. Such an analysis would require the European States which do not allow homosexual marriage to offer an alternative and similar form of recognition to same-sex couples, such as civil partnership. If the Court establishes such a right, the next stage will then be the raising of the rights associated with this partnership to the level of those associated with marriage. Finally, the two positions will be distinguishable less by rights than by the obligations which will possibly remain more important in marriage.
This process of the legal dissolution of the “family” has evidently not been completed: the questions of polygamy, new forms of “multi-parenthood” and of the inequality of rights attached to marriage and civil partnership remain. This process is not an inevitable historical phenomenon, it is the inheritance of legal and political decisions which, step by step, have lead the Court to the opposite of the original intention of the authors of the Convention, who wished to protect families from the State, and not to entrust to the State the power to define the family. The Strasbourg Court does not merely follow the evolution of mentality; often it precedes and guides it, acting as “guide” to national courts and legislators.
The Court has also applied this power of defining reality, which exceeds the power of interpretation of norms, to the terms man and woman. It has effectively declared, in order to extend the right to a transsexual person to marry a person of the same biological sex that it “is not persuaded that at the date of this case it can still be assumed that these terms must refer to a determination of gender by purely biological criteria” (Goodwin, 2002 § 100). Man and woman are redefined as designating the psychological, social or biological sex, that is to say the “gender”. Thus family, and even sex, are no longer tangible realities upon which the law can be stably founded, but are relative and dynamic “notions” defined by a right which is also relative and dynamic. By acquiring the power to redefine reality – the legal norm replaces reality as a criterion of (social) truth – the right thus becomes a privileged instrument of social engineering. This legal redefinition of reality leaves no room for moral contention because it claims to state that which is, and furthermore, it claims to be that which is. According to the original conception of the authors of the Convention and other major texts of the post-war period, the State emanates from the society which is constituted by families, and therefore the family precedes the State. According to the new conception, it is the State, which through its hold on society redefines the family according to the dominant thinking and demands. This change in perspective demonstrates the modern rerouting of human rights theory: initially founded upon natural law humanism, it has today become a privileged instrument of the implementation of liberal individualism which, by an ironic paradox, reinforces the State’s hold over society in exchange for the promise of greater freedom for individuals.