Research Handbook on Gender, Sexuality and the Law
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Research Handbook on Gender, Sexuality and the Law

Edited by Chris Ashford and Alexander Maine

This innovative and thought-provoking Research Handbook explores not only current debates in the area of gender, sexuality and the law but also points the way for future socio-legal research and scholarship. It presents wide-ranging insights and debates from across the globe, including Africa, Asia, Eastern Europe and Australia, with contributions from leading scholars and activists alongside exciting emergent voices.
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Chapter 8: Same sex marriage and Article 12 of the European Convention on Human Rights

Paul Johnson and Silvia Falcetta

Abstract

This chapter provides a critical analysis of the jurisprudence of the European Court of Human Rights in respect of same sex marriage. We begin by exploring the ways in which human rights law provides a crucial framework through which to challenge legal restrictions on same sex marriage. We then provide a critical consideration of the jurisprudence that the Court has established on same sex marriage under Article 12 of the European Convention on Human Rights. We discuss a number of aspects of the Court’s approach to same sex marriage which, we argue, are inconsistent with its general jurisprudence on the right to marry and reinforce a heteronormative understanding of marriage. In conclusion, we argue that the Court has interpreted Article 12 in a way that ensures that the right to marry guaranteed by the Convention remains, in practical and effective terms, inapplicable to same sex couples.

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