27/04/12

(These submissions were sent to Sir Nicolas Bratza, President of the European Court of Human Rights. On 14 may 2012 the Registra acknowleged receipt of these submissions on behalf of the President of the Court)

Introduction

The European Convention on Human Rights declares in Article 12 that “men and women of marriageable age have the right to marry and found a family”. At the time the Convention was being drafted, after the Second World War and in order to avoid a repeat of the racial discrimination that had occurred in Nazi Germany, it was felt necessary to protect the right to marry and the right to found a family. The fundamental institution of marriage, which is for the good of men and women and the welfare of children and society, and is protected by these rights, is being undermined today. Homosexuals claim that they should be granted the right to live as if they were married and bring up children on an equal footing with heterosexual couples. Unfortunately, it appears that marriage is also jeopardised by judges sitting in the European Court of Human Rights itself, who would be prepared to give to homosexual couples the same right to bring up children as heterosexual couples have. This is a most worrying trend in current European Court case-law, which increasingly relies more on the evolution of society and the consensus that can be found between European states than on the common fundamental Judeo-Christian values that are shared by most European States which are parties to the European Convention.

In a recent Chamber judgement Gas and Dubois v. France (Application no. 25951/07) rendered on 15 March 2012 (only available in French) the Court reiterated that the Convention does not impose on the governments of party states the obligation to grant the possibility to marry to homosexual couples. The Court also decided that there had not been any discrimination on the grounds of the sexual orientation of the applicants. This would sound reassuring except that four judges out of seven, including the President of the Chamber, encouraged the French State in separate annexed opinions to review its legislation so as to enable homosexual couples to be granted joint parental responsibility for any children they choose to bring up together.

The facts of the case

In the case Gas and Dubois v. France the applicants were two French women living together in France. One of them went to Belgium so as to conceive a child by means of medically-assisted procreation with an anonymous donor. She would not have been entitled to this treatment in France, since in her home country the possibility was restricted to couples consisting of a man and a woman, either for reasons of infertility or to avoid the transmission of disease to the child or to a member of the couple.

Once the child (a little girl) was born, both women entered into a civil partnership agreement. Then the partner asked to be granted a simple adoption order concerning the child of the mother. According to French law when such an adoption is pronounced, the natural mother loses all parental responsibility which is transferred to the person adopting the child. The French courts considered that such an outcome would not be in the best interests of the child, as it would deprive the mother of her parental responsibility, and refused to grant the request for adoption. The case was eventually brought before the French Supreme Court (Cour de cassation) but the applicants abandoned these proceedings. Although the two women had not exhausted all internal remedies the European Court declared their petition against France admissible.

The applicants’ arguments

Both applicants made it clear that they did not ask for the possibility to marry, nor did they want to get married. They argued that their right to private and family life had been infringed as a result of not being able to exercise joint parental responsibility by way of adoption of the child. They further maintained that there was a discrimination against them compared to a married couple as a result of not being able to exercise joint parental responsibility by one of them adopting the child born to the other.

French law does indeed provide the right for a man or a woman to share parental responsibility if he or she adopts the child that was born to the person he or she is married to. Since according to French law “marriage is the union of a man and a woman” the possibility to marry was not open to homosexual couples. If adoption was to take place, the natural mother would have entirely and definitively lost her parental responsibility over her daughter. This is what the French courts decided should not happen in the best interests of the child. As a result it was not possible for two homosexuals to share parental responsibility by means of one of the two obtaining the right to adopt the child that was born to the other.

The decision of the European Court

The European Court found that there had not been discrimination on the grounds of Article 14 (prohibition of discrimination) combined with Article 8 (right to private and family life) against either woman because of their sexual orientation for the two following reasons:

- First, the Court reiterated what it had already stated in the judgement Schalk and Kopf v. Austria rendered on 24 June 2010 that the European Convention on Human Rights did not require member state governments to grant same-sex couples access to marriage;

- Second, that unmarried opposite-sex couples who entered into a civil partnership would likewise be prohibited from obtaining adoption in the same way as same-sex couples.

The reasons provided by the Court may appear logical and technically satisfactory. Those who believe the Judeo-Christian understanding of marriage as being the union of one man with one woman for life, which is the sole proper framework for founding a family and raising children, may be satisfied with this judgement; but none should underestimate the implications of the three separate opinions that were annexed to the judgement. Their reading does not augur well for future decisions that may be made by the Court and this is a matter of serious concern.

Separate opinions annexed to the judgement

In his dissenting opinion, Judge Villiger expressed his deep conviction that shared parental responsibility given to both members of the homosexual couple is in the best interests of the child. He stated that the judgement had not identified the proper elements to be taken into consideration ie. that it concentrates on the adults concerned and not on the child. What was paramount were the interests of the child. To support his argument he maintained that all children should receive the same treatment, which in this case meant benefiting from shared parental responsibility. He also argued that children have no responsibility in being born to a member of a homosexual or heterosexual couple and should not suffer from the situation of their parents. He further maintained that the difference in treatment, which is justified on the grounds that marriage has a particular status in society, is not convincing. Finally, he insisted that children born within the framework of a homosexual relationship should be given the best treatment offered to children born within a heterosexual relationship.

The arguments raised by Judge Villiger lack relevance, as they do not address the fundamental issue. Although acting in the best interests of the child is paramount, this is not a reason to equate homosexual and heterosexual couples. The true question is whether it is in the best interests of the child to be brought up by two homosexuals living together, which is both an unnatural and unethical framework.

If all children should receive the same treatment, as Judge Villiger asserts, it should be first of all acknowledged that a child being brought up by two homosexuals, whether men or women, does not and cannot benefit from the same treatment as a child who is brought up by a man and a woman. In reality, to grant joint parental responsibility to homosexuals living together in relation to a child is to enforce an inequality of treatment between children, who should all be entitled to be brought up by a father and a mother. Contrary to Judge Villiger’s reasoning, homosexual couples cannot in this regard be placed on an equal footing with heterosexual couples.

Also, while it is true to say that children bear no responsibility in being born to a person who is homosexual and living with a person of the same sex, the person who decides to procreate while living in such condition is well aware that she/he will deprive her/his child of either a father or a mother. Attributing shared parental responsibility to both homosexuals living together will not remedy the fundamental flaw that is at the root of this unethical relationship, ie. the inevitable imbalance of a homosexual environment.

Again, contrary to what Judge Villiger states, the difference in treatment for homosexual couples is fully justified because they cannot provide what heterosexual married couples can for children. Marriage has a particular and unique status in society, which is acknowledged by the European Convention itself. It is indeed the foundational unit on which society is built and can prosper. This is the best framework for children to be brought up in, and one that cannot be replaced by any other form of arrangement that a homosexual couple would want to impose on a child that they wish to have in their custody.

It is therefore clearly not in the best interests of the child to be born to a homosexual mother living with another person of the same sex. If French law came to be changed or if the European Court decided to review its jurisprudence, it could in fact morally endanger children yet to be born, as homosexual couples would be encouraged to seek the custody of children at their wish, within the framework of an unnatural relationship.

As if the voice of one dissenting judge was not enough, the President of the Chamber and two other judges, while agreeing that there had not been discrimination in this case, joined forces to urge the French State to reconsider its legislation with a view to making it possible for homosexual couples in the future to obtain shared parental responsibility. This we believe is a step too far and judges in this domain would be wise to refrain from undermining one of the very foundation stones of our society.

The European Judeo-Christian heritage

It would appear that the problem of the European Court in this matter is that it provides an interpretation of the rights enshrined in the Convention that is dependant on the existence of a consensus at European level. It does not seem that the Court relies on the Judeo-Christian doctrinal basis on which to develop a sound interpretation of the Convention rights, since it is merely following the evolution of society. It would be proper for the Court to review its approach and to give an interpretation of rights based on the common Judeo-Christian heritage shared by most European countries that adhere to the Convention, analysing issues from a doctrinal and ethical point of view.

The consequences of such an approach based on the evolution of society will prove to be fatal, and rather than promoting human rights and the well-being of children, will jeopardize the very fabric of society. The stable marriage between one man and one woman for life makes an essential contribution to the overall well-being of society. It now appears vital for the Court to reassert the fundamental value of marriage based on Article 12 of the Convention (this is not mentioned even once in the judgement, although it is indirectly referred to) as the foundational unit and irreplaceable framework in which children are to be brought up. The Court should also be careful not to downgrade marriage, empty Article 12 of its meaning and deprive it of its role by giving an over-extensive interpretation to Article 8, which protects the right to private and family life. Article 12 states not only the right for a man and a woman to marry but also the right to found a family. In so doing it provides a definition of how a family is composed: a father, a mother and one or more children.

Therefore, according to the Convention the family is not just any type of arrangement that people would wish to have, and the possibility for two homosexuals to found a family does not exist. Clearly there is no right to family life for two homosexuals living together, although the right to family life may be recognised between one homosexual parent and his/her child.

Conclusion

The decision made by the Court is overall a welcome development. The Court confirmed that the Convention does not create an obligation for party States to make it possible for homosexuals to marry, and it is indisputable that the best and proper framework for children to be brought up in is within a lifelong marriage between one man and one woman. There is therefore no need for French legislation to be modified and it is hoped that the European Court will be encouraged to maintain the fundamental institution of marriage, which is based on the European Judeo-Christian heritage and upheld by the European Convention.