Not all is possible in the name of love: the discrimination case of Ratzenböck and Seydl v. Austria
In Ratzenböck and Seydl v. Austria the ECtHR held that a heterosexual couple was not being discriminated against when they were denied access to a registered partnership – a legal institution only available to same-sex couples.
The case of Ratzenböck and Seydl v. Austria (ECtHR, 26 October 2017, application no. 28475/12) concerns a heterosexual couple that was denied access to a registered partnership in Austria. According to Austrian law, registered partnership was only open for same-sex couples. The heterosexual couple therefore claimed that they had been discriminated against on the basis of their sex and sexual orientation. While cases concerning discrimination on the basis of sex and sexual orientation against same-sex couples have been lodged before the European Court of Human Rights (‘ECtHR’ or ‘Court’) in the past (see Schalk and Kopf v. Austria, Vallianatos and Others v. Greece and Oliari and Others v. Italy), this is the first time the ECtHR had to examine the issue of discrimination from the viewpoint of a heterosexual couple.
The applicants had been living in a stable relationship for many years and wanted to ‘seal their love’ by means of a registered partnership. While the couple could enter into a marriage, they preferred a registered partnership since this was, in their view, more modern and lighter than a marriage. The couple argued that a marriage was not suitable for them because of the differences in the legal framework of marriage compared to that of registered partnerships.
The ECtHR begins by stating that for discrimination, the couple must demonstrate that they were treated differently to others that were in a (relevantly) similar situation. The Court acknowledged that this relevantly similar situation exists when it concerns the general need for legal recognition and protection of relationships (Ratzenböck, para 39). Yet in the present case, the overall legal framework governing the legal recognition of relationships had to be taken into consideration as well. In this light, the registered partnership was used in Austria as an alternative for marriage for same-sex couples, since they were excluded from the latter. Furthermore, looking at the status of marriage and that of registered partnerships, the ECtHR determined that there were no substantial differences between the two legal frameworks; they are essentially complementary in Austrian law (Ratzenböck, para 40). The ECtHR is therefore of the opinion that the applicants are not in a relevantly similar situation to same-sex couples. The applicants have in fact a right to marry, while same-sex couples do not have such a right and thus need the legal institution of registered partnership. The Court furthermore acknowledged that states enjoy a certain margin of appreciation when it concerns the exact status conferred by alternative means of recognition. It held that there was no indication that the state had exceeded this margin of appreciation. Above all, the applicants did not show that they were specifically affected by any difference in law between the two legal institutions (Ratzenböck, para 41). There was thus no discrimination according to the ECtHR.
However, not all judges agreed with the reasoning of the majority. Judges Tsotsoria and Grozev stated in their dissenting opinion that different-sex couples and same-sex couples are in a similar situation. According to them the difference in treatment needed to be justified by looking at the necessity of the difference in treatment. In a previous case the ECtHR took exactly this approach (see Schalk and Kopf v. Austria). The Court considered that the groups were in an analogous situation and that for reasons of history and tradition the refusal of access to marriage for same-sex couples was justified. This approach should have been followed in the present case as well, yet the outcome should have been different in the view of the dissenting judges. Since Austria did not provide a strong justification for the difference in treatment, this should have led to the finding of a discrimination in the current case. In the opinion of judges Tsotsoria and Grozev, the majority neglects to see different-sex and same-sex couples as a social group which exists irrespective of regulatory choices. Those groups should be seen as more than merely groups created by the legislature. The judges consider the analysis of the majority a ‘risky course’, since it could lead to placing more emphasis on the ‘different nature’ between heterosexual and homosexual relationships.
A new viewpoint, yet no new outcome. Where the Court previously held that there was no discrimination in the case of same-sex couples who wanted to get married, the Court sticks to its guns and also decides that there was no discrimination in the case of different sex-couples who wanted to get a registered partnership. If the ECtHR would have accepted that there was discrimination in the present case, this could have opened the door for same-sex couples wanting to get married. After all, why would one situation classify as discrimination and the exact opposite not? In this vein it is perhaps not surprising that the Court did not find a discrimination. Yet, as indicated by the dissenting opinion, the reasoning of the Court in these type of cases is not as consistent as it perhaps should be and could lead to stereotyping.
For the applicants it is clear that they can only resort to marriage if they want to formalize their love. Meaning that for now, not all is possible (or fair?) in the name of love.