Abstract/Summary

This piece articulates specific difficulties for the European Court of Human Rights (‘ECtHR’) in engaging with equality arguments in relation to same-sex marriage. It is argued that it is a necessity to engage with equality arguments due to the close connections between equality, citizenship and marriage. The text of the European Convention of Human Rights (‘ECHR’) does not assist as Article 14 (equality) is a conditional right only. Whilst earlier cases concerning gay rights were secured by a right to privacy (Article 8) with a narrow margin of appreciation which reflected a universally understood concept, in relation to equality arguments there is greater relativist scope leading to a wider margin of appreciation. Lastly, in seeking to engage in equality arguments comparisons between different groups categorised by sexual orientation are required, thereby further emphasising the concept of the dominant heterosexual norm.