A distinct way of testing our approach to marital and non-marital heterosexual relationship is to ask ourselves how many of the same principle might apply to gay and lesbian relationships.

So far the European Commission on Human Rights has not recognised that the relationship of a same-sex couple as constitutes their “family life” (manifestly ill-founded’). Similarly the European Court has held that Article 12 protects “that traditional marriage between persons of opposite biological sex”

    Two such cases are outlines here. Simpson v. UK and Roosli v. Germany. In Simpson v UK a woman faced eviction from her house following the death of her lesbian partner, the deceased being the only legal tenant of the house. Under national legislation the court grants a succession right to the person who lived together as ‘husband and wife’, but the Court of Appeal interpreted this phrase as meaning ‘unmarried different sex partner’. The Commission concluded that the applicant did not have a ‘family life’ with her deceased partner. The appellant’s strongest argument was that she had suffered discrimination in relation to her ‘home’, in contradiction of Articles 8 and 14 ‘for no other reason that she was of the wrong sex’. The Commission accepted that she had been treated differently but they found an objective and reasonable justification for such treatment, concluding that it was not ‘discrimination’ because ‘the family (to which the relationship of heterosexual unmarried couples can be assimilated) merits special protection in society and [the Commission] sees no reason why a [government] should not afford particular assistance to families

   In Roosli v. Germany the Commission merely adopted the same reasoning as that in Simpson. The Commission found no reasoning to depart from Simpson, having regard to the German courts reasoning: ‘Views on marriage and family had changed in society and justified the extension of the [statutory terms ‘family member’] to [unmarried] heterosexual couples. However, homosexual or lesbian couples were not similarly accepted in society’.

Furthermore, the European Court of Justice has adopted a conservative approach in interpreting European Community law in recent cases lesbian and gay rights. In Grant v. South West Trains the court had to consider whether the extension of employee travel concessions to unmarried heterosexual partners, but not to unmarried homosexual partners, constituted discrimination on grounds of sex under Article 119 of the EC Treaty and Article 1 of the Directive 75/117/EEC. The ECJ pointed out that since the rule applied equally to male and female employees it was not discriminatory on grounds of sex narrowly understood. Further, the Court concluded that ‘in the present state of law within the Community, stable relationships between two persons of the same sex are not regarded as equivalent to marriages and stable relationship outside marriage between persons of opposite sex’.

    It is contended that the judgement shown by the Commission are unsurprisingly harsh. Both cases were decided in the late 1990’s when changes, such as the enactment of same sex registered partnership in law in Denmark, Norway, and Sweden, has already taken place in Europe.

The ECHR appears not to adopt as harsh an approach as the Commission when considering other forms of ‘sexual orientation discriminated’. In Salgueiro da Silva Mouta v. Portugal, Salguerio (a gay father) challenged a ruling before the ECHR, arguing that the Court of Appeal violated the convention by refusing to award custody of his daughter solely because of his sexual orientation. The ECHR held that the Court of Appeal had created ‘a difference of treatment between [the father] and [the] mother, which was based on [the father’s] sexual orientation’ and was therefore a breach of Article 14.