‘The choice of wording must be regarded as deliberate’: same-sex marriage and Article 12 of the European Convention on Human Rights

Publishers Abstract
This article provides a critical analysis of the textual interpretation of art.12 of the European Convention on Human Rights (ECHR) promulgated by the European Court of Human Rights ( ECtHR) in respect of same-sex marriage.

The author argues that the ECtHR’s interpretation of art.12 is based on problematic historical claims about the textual construction of the right to marry which, when subject to scrutiny in light of available evidence relating to the drafting process of the ECHR, undermine its conclusion that art.12 extends only to opposite-sex couples.

I challenge the ECtHR’s interpretation of art.12 by arguing that its understanding of the wording of the right to marry suffers from "historical presentism". I conclude by suggesting that a textual interpretation of art.12 need not lead to the conclusion that same-sex couples are excluded from the right to marry.

Sweet and Maxwell: European Law Review http://www.sweetandmaxwell.co.uk/catalogue/productdetails.aspx?recordid=427&productid=6968

ESO: Background Information: Same-Sex Marriage: The EU is Lagging Behind http://www.europeansources.info/record/same-sex-marriage-the-eu-is-lagging-behind/

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