(In)Comparable Situations: Same-Sex Couples' Right to Marriage in European Case Law

Despite the undeniable progress in the field of same-sex couples' rights, the exclusion from the right to marry remains an apparently unbreakable ceiling in European case law. Yet, the importance of this matter is conveyed by the persisting submission of claims of discrimination on the grounds of sex orientation by same-sex couples excluded from this right, before domestic and supranational courts alike. This article aims to analyse this limitation, reasoning on possible future perspectives for the inclusion of same-sex couples within the scope of the human right to marry. To do so, this article will first critically review the gradual recognition of rights and entitlements to such couples in the case law of the CJEU and the ECtHR, with reference to several aspects of their lives together. A particular attention will be devoted to its assessment of the comparability of same-sex couples' situation with that of different-sex couples. Second, it will move on to focus on the right to marry - analysing the reasons for the exclusion of same-sex couples from this basic human right. In this context, the comparability of civil unions or registered partnerships (as envisaged in the domestic jurisdictions of EU Member States) with the institution of marriage will be discussed. Third, this article will enquire on possible further developments in the case law of the CJEU and ECtHR on the matter, particularly in the light of the general principle of equality and non-discrimination.