The Freedom to Marry in Human Rights Law Worldwide: Ending the Exclusion of Same-Sex Couples from Marriage

Abstract

In 2017, the Inter-American Court of Human Rights issued OC-24/17, a breakthrough advisory opinion that made the Court the first human rights mechanism to explicitly hold that States have an obligation to respect same-sex couples’ freedom to marry. This Article is the first since OC-24/17 was issued to analyze comprehensively the extent to which human rights law, across international, regional, and national jurisprudence, requires States to respect the freedom to marry. It argues for the reassessment of Joslin v. New Zealand and Schalk and Kopf v. Austria, earlier cases from other human rights bodies that acknowledge the rights of same-sex couples to equality and family, but so far have fallen short of ending marriage discrimination. The Article then makes the case for these couples’ freedom to marry as rooted in the right to marry, the rights to equality and non-discrimination, the rights to privacy and family, and the rights to liberty and dignity, as well as, under certain circumstances, the rights of children and parents, the right to freedom of movement, and the right to be free from inhuman or degrading treatment. This Article not only argues that human rights law can be understood to protect the freedom to marry, but also demonstrates why it is urgent that it should be so understood.