유럽에서의 同性婚 合法化 傾向

Legalization of Same-Sex Marriage in Europe -focused on England and France-

The Discussion on legalizing same-sex marriage began about 20 years ago at the European level, but there's no binding regulation to enforce the member states of EU or European Council to allow same sex marriage or civil union. Also the European court of Human Rights declared that the question whether or not to allow same-sex marriage is left to regulation by the national law of the Contracting State. The Court reiterates that it must not rush to substitute its own judgment about marriage in place of that of the national authorities, because marriage has deep-rooted social and cultural connotations which may differ largely from one society to another. But this statement doesn't mean that the principle of non-discrimination on account of sexual orientation plays no role at the level of EU und European Council. For example European Court of Justice ruled that the refusal to grant the survivor's pension to same-sex partners constitutes direct discrimination on grounds of sexual orientation. Also according to the recent judgement of ECtHR the margin of appreciation in relation to unequal treatment based on sex or sexual orientation is narrow, so that it must be shown that such a discriminatory measure was not merely suitable but necessary in order to achieve the aim sought. Based on this consideration ECtHR ruled that Greece had violated the European Convention on Human Rights by excluding same-sex couples from a civil union. In the meanwhile more and more European countries legalize same-sex marriage. Since Netherland legalized same-sex marriage in 2000 first in the world, 9 member states of EU and 11 Contracting states of European Council grant same-sex marriage. Among them especially England and France deserve further research and study in consideration of the important position which these states occupy in the EU and in comparative law study. In UK the Civil Partnership Act 2004 enabled same-sex couples to obtain legal recognition of their relationship by forming a civil partnership. Although CPA 2004 allowed to civil partners same rights and responsibilities as married couples in many areas including tax, social security, inheritance and workplace benefits, but some have argued that there are still differences in the perception of the two institutions and these arguments have been advanced that same sex couples should be able to marry. Worth noting is that the role of Courts which contribute traditionally to enhancing human rights was in developing the arguments for allowing same-sex marriage limited. In Wilkinson v. Kitzinger the High Court of Justice announced that the prohibition of same-sex marriage is no discrimination of European Convention of Human Rights, taking into consideration that English law already granted to homosexual couples to live in a very close, loving, and monogamous relationship. By contrast the government and parliament of England found it insufficient only to grant same-sex couples very similar legal position as that of conjugal couple. Also same-sex couple should be provided with the same opportunity to recognize that commitment in the valued institution of marriage In addition it was taken into account that the recognition of same-sex marriage will also get rid of some discriminatory differences between civil marriages and civil partnerships. Finally the Marriage (Same Sex Couple) Act 2013 enables same sex couples to marry, either in a civil ceremony or with the marriage being solemnized through a religious ceremony. But the legislator took caution not to compel religious organizations to conduct marriages for same sex couples, so same sex marriage ceremony on religious premises is permitted only when the religious organization consents. Under the previous French Code Civil, a marriage could only be between a man and a woman. But the legislation of the Pacs (Civil Union) in 1999 offered to the possibility to conclude a homosexual civil union. In comparison with the civil partnership of