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''Schalk and Kopf v Austria'' (Application no. 30141/04) is a case decided in 2010 by the European Court of Human Rights (ECtHR) in which it was clarified that the European Convention on Human Rights (ECHR) does not oblige member states to legislate for or legally recognize same-sex marriages. ==Facts== The applicants are a same-sex couple living in Vienna, Austria. On 10 September 2002 they requested the Office for matters of Personal Status (Standesamt) to proceed with the formalities to enable them to contract marriage. By decision of 20 December 2002 the Vienna Municipal Office (Magistrat) refused the applicants’ request. Referring to Article 44 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch), it held that marriage could only be contracted between two persons of opposite sex. According to constant case-law, a marriage concluded by two persons of the same sex was null and void. Since the applicants were two men, they lacked the capacity for contracting marriage. The applicants then lodged an appeal with the Vienna Regional Governor (Landeshauptmann), which was also dismissed. In his decision of 11 April 2003, the Governor confirmed the Municipal Office’s legal view. In addition he referred to the Administrative Court’s (Verwaltungsgerichtshof) case-law according to which it constituted an impediment to marriage if the two persons concerned were of the same sex.〔para. 7-10 of the ECtHR judgment〕 The ultimate and final remedy for the applicants was a complaint to the Constitutional Court (Verfassungsgerichtshof). In this complaint the applicants alleged that the legal impossibility for them to get married constituted a violation of their constitutional right to respect for private and family life and of the principle of non-discrimination. (Austria treats the ECHR as part of its own constitutional law. The legal provisions referred to by the applicants were thus those set out in Articles 12, 8 and 14 of the Convention). They argued that the notion of marriage had evolved since the entry into force of the Civil Code in 1812. In particular, the procreation and education of children no longer formed an integral part of marriage. In present-day perception, marriage was rather a permanent union encompassing all aspects of life. There was no objective justification for excluding same-sex couples from concluding marriage, all the more so since the European Court of Human Rights had acknowledged that differences based on sexual orientation required particularly weighty reasons. Other European countries either allowed same-sex marriages or had otherwise amended their legislation in order to give equal status to same-sex partnerships. On 12 December 2003 the Constitutional Court dismissed the applicants’ complaint. The relevant parts of its judgment read as follows: ''“Neither the principle of equality set forth in the Austrian Federal Constitution nor the European Convention on Human Rights (as evidenced by “men and women” in Article 12) require that the concept of marriage as being geared to the fundamental possibility of parenthood should be extended to relationships of a different kind. (...) ''The fact that same-sex relationships fall within the concept of private life and as such enjoy the protection of Article 8 of the ECHR – which also prohibits discrimination on non-objective grounds (Article 14 of the ECHR) – does not give rise to an obligation to change the law of marriage. ''It is unnecessary in the instant case to examine whether, and in which areas, the law unjustifiably discriminates against same-sex relationships by providing for special rules for married couples. Nor is it the task of this court to advise the legislature on constitutional issues or even matters of legal policy.'' ''Instead, the complaint must be dismissed as ill-founded.”''〔(Verfassungsgerichtshof (VfGH), B777/03, 13.12.2003 )〕 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「Schalk and Kopf v Austria」の詳細全文を読む スポンサード リンク
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