Abstract
The judgment of the Grand Chamber in the case of Fedotova and Others v. Russia has recognized the right to legalized same-sex unions under the Convention, thereby significantly impacting LGBTQ rights throughout Europe. However, this decision also presents intricate challenges concerning the Court's legitimacy, and resilience amidst the prevailing culture wars on LGBTQ rights. Following an introduction to the factual background of the case, the note proceeds to analyse the Court's judgment. Section 4 critically evaluates the judgment and examines its extensive implications on geopolitical affairs and the ongoing culture wars. Finally, section 5 provides a concluding statement.
Introduction
The judgment of the Grand Chamber of the European Court of Human Rights (ECtHR) in the case of Fedotova and Others v. Russia is poised to have a significant impact on the legal status of LGBTQ families. This landmark decision, delivered in January 2023, recognizes a right to legalized same-sex unions under the Convention. The Court asserts that Contracting Parties have a positive obligation to recognize such unions under Article 8 of the Convention, which protects the right to respect for private and family life. Although the emergence of this positive obligation was already apparent in earlier case law, the Fedotova judgment stands out in several respects. 1 In the preceding Oliari judgment against Italy in 2015, 2 the Grand Chamber acknowledged a right to the legal recognition for same-sex couples through a ‘specific legal framework’, but it appeared to ground the decision in the unique circumstances of Italy, thereby raising doubts about the general applicability of its ruling throughout the Convention area. 3
The second peculiarity of the judgment relates to the nature of the defendant. Russia was a contracting party with a different understanding of the human rights paradigm, justifying its withdrawal from the Convention on the basis of an irreconcilability of views regarding such a paradigm. 4 In addition, unlike in the case of Italy, the Court had to contend with low social acceptance of same-sex unions and LGBTQ rights. In Fedotova, the Court extends its reach into political contexts where the legal recognition of LGBTQ couples is not supported by society at large. This point is particularly important and was reinforced by two subsequent rulings in May against Romania and Ukraine. Further cases are expected to follow. Therefore, an analysis of the Fedotova judgment is crucial not only to grasp the contours of this ground-breaking ruling but also to assess the extent to which the Court may have entered a new phase in the protection of the rights of same-sex unions within the Convention's space and the potential implications.
The note is organized as follows: section 2 provides an overview of the factual background of the case. Section 3 analyzes the Court's judgment. Section 4 offers a critical evaluation of the judgment and of its larger geopolitical implications for the ongoing culture wars over LGBTQ rights. Section 5 concludes.
Factual background
The facts of the case are relatively straightforward. The Fedotova decision stems from the marriage applications submitted by three same-sex couples in Russia in 2009 and 2013 at the civil registry office. The first communication, filed in 2009 by Rene Fet, a transgender person, and their partner Irina Shipitko, was considered and rejected by the local authority. The second and third communications, with the latter being dismissed during the Grand Chamber proceedings, were filed in 2013 by two other same-sex couples and promptly rejected based on Article 1 of the Russian Family Code, which defines marriage as a voluntary union between a man and a woman. The Russian Court of First Instance upheld the rejections, citing established case law from the Russian Constitutional Court and the idea that the concept of same-sex marriage is inherently incompatible with the country's cultural and religious traditions. 5 The domestic legal framework, according to the Russian Constitutional Court, is informed by a perception of marriage as a ‘biological’ social institution. 6 As such, it rests upon natural and immutable characteristics such as being the union between a man and a woman.
Furthermore, following constitutional amendments introduced in 2020, both the Family Code and Constitution enshrine a conservative-traditionalist conception of the family. The revised Constitution explicitly commits the Russian state to protecting the family, maternity, paternity, childhood and marriage as the union of a man and a woman (part 1g1 of Article 72 of the Constitution), 7 further reinforcing the prior situation of incompatibility between same-sex marriage and the domestic legal framework.
The decision of the Grand Chamber
The Grand Chamber was tasked with reviewing the appeal lodged by the Russian Government against the judgment of the Third Chamber, which established a right to legalized same-sex unions under the Convention. 8 The Third Chamber had to address the question of the compatibility between Russian domestic law and Article 8 of the ECHR (right to respect for private and family life), as well as Article 8 taken in conjunction with Article 14 of the ECHR (prohibition of discrimination). In the first instance, the Third Chamber identified a positive obligation on Russia to recognize same-sex unions based on Article 8. In a reasoning quite similar to that put forward by the Grand Chamber, it notes that Article 8 produces positive obligations for the state, including the introduction of measures to ensure the respect of one's private and family life. In determining the content of the positive obligation, the Court recalls factors spanning a dissonance between the reality of families and the law and the impact of the positive obligation at stake on the state concerned. 9 As to the margin of appreciation granted to the state in implementing such obligation, the extent and degree of this margin varies as a number of factors vary. It is interesting that in listing these factors the Court does not cite consensus between Contracting Parties, but rather the question of ‘the centrality of a given aspect in the life of an individual or identity’. 10
The Government, in its challenge, argued that the Court's broad interpretation of Article 8 ECHR was in conflict with Article 12 of the Convention, which establishes the right to marry for men and women, as well as Article 16 of the Universal Declaration of Human Rights, which enshrines the right to marriage between individuals of the opposite sex. 11 The applicants complained about the impossibility of contracting a marriage and obtaining any form of legal recognition under domestic law. The subject matter of the application submitted to the Grand Chamber remained the same, providing the Chamber with an opportunity to thoroughly re-examine the issue. 12
Applicability of and positive obligation under Article 8
The Grand Chamber focuses its judgment on Article 8 of the ECHR, considering it unnecessary to address the discrimination argument raised by the applicants. 13 In relation to the right to respect for private and family life, the Court adopts an evolutive interpretation of the Convention, granting same-sex couples the protection of Article 8 as far as their family life is concerned. 14 According to the Court, ‘in view of the rapid evolution in a considerable number of member states regarding the legal recognition of same-sex couples, it was artificial to maintain the view that, in contrast to a different-sex couple, a same-sex couple could not enjoy “family life” for the purposes of Article 8’. 15 With this brief statement, the Court swiftly proceeds to reaffirm its previous case law on the existence of positive obligations imposed on states under Article 8. The Court clarifies that the case does not concern the institution of marriage, but rather the absence of any form of legal recognition for same-sex couples. 16
Having framed the question as concerning legalized unions only, the Court confirms the incompatibility between the complete absence of a legal framework for recognizing same-sex unions and its previous case law. 17 This case law unequivocally points to a legal obligation to introduce a ‘specific legal framework’ to protect such couples, absent overriding state interests.
Interestingly, the conclusion reached by the Court is not entirely unambiguous. Oliari had indeed recognized a right to a ‘specific legal framework’. 18 However, the Court limited its judgment to the specific circumstances of Italy, taking into account the pronouncements of the Constitutional Court and the Court of Cassation, as well as the general social acceptance of same-sex couples in Italy. Russian Judge Lobov, in his dissenting opinion, strongly emphasizes the non-univocal nature of the previous case law. 19
Doctrine of the margin of appreciation
In determining the margin of appreciation enjoyed by the states, the Court refers to the important and controversial issue of the consensus of the Contracting Parties. The ruling describes a ‘clear ongoing trend’ towards recognizing this right to legalized partnerships. Numbers in hand, the Court notes how the legal framework is rapidly evolving in the Convention space and how tangible changes are taking place compared to the years in which the Oliari judgment was delivered (2015), when a ‘rapid evolution’ in that direction could already be discerned. 20 Whereas at the time of Oliari 24 out of 47 States had introduced protections in favour of such couples (through marriage or registered partnerships), nowadays there are 30 Contracting Parties offering such recognition in their domestic legal systems. 21
A crucial point in the reasoning of the Strasbourg Court concerns the breadth of the margin of appreciation to be granted to Contracting Parties in this matter. The Court notes that, as regards the issue whether legal protection should be granted (the an of legal protection), the states’ margin of appreciation is ‘significantly reduced’ in light of: (i) the consensus found among the Member States; and (ii) the fundamental importance of the issue brought to its attention. 22 As to the latter, the Court considers that ‘a claim by same-sex partners for legal recognition and protection of their relationship touches on particularly important facets of their personal and social identity’. 23
A related yet separate question concerns the form and content of the legal regime to be introduced (the nomen and quantum of legal protection). In relation to the form and content of the regime, states enjoy a wider margin of appreciation. According to the judges, ‘while a clear ongoing trend is emerging towards legal recognition and protection for same-sex couples, no similar consensus can be found as to the form of such recognition and the content of such protection’. 24 The judgment does not explicitly mention registered partnerships, but uses language that lays the groundwork for subsequent judgments that openly refer to a right to registered partnerships, as it will be the case in the judgment delivered against Romania. 25
Regarding the content of the regime, the Court emphasizes that the margin of appreciation cannot be used by states to render Article 8's protection illusory. 26 Previous case law establishes that, for recognition to be ‘adequate’, the legal regime must include various material and moral protections. These protections may include tax benefits, inheritance rights, the right to maintenance, as well as rights of mutual material and moral assistance. 27 The existing legal framework in Russia does not provide these ‘adequate’ protections, as the applicants and third-party interveners highlight. While some limited legal benefits are available to same-sex families in Russia (such as the possibility of jointly applying for a mortgage), they are deemed insufficient within the meaning of the Convention.
Countervailing state interests
In assessing whether Russia struck a fair balance between the countervailing public interests for not granting recognition and the interests of the applicants, the Court considered the adverse effects faced by same-sex couples due to the lack of legal recognition. The applicants described the burdens they face in their daily lives, such as being unable to obtain housing benefits and lacking eligibility for maintenance upon death or separation. 28 The Court also emphasized the significance of the expressive benefits of legal recognition, which were also highlighted in previous judgments like Vallianatos. 29 It recognized that only a specific legal-regulatory regime can provide a sense of worth and confer ‘existence and legitimacy’ upon same-sex couples in the eyes of the outside world. 30
As to the Russian Government, the justifications it put forward were deemed insufficient to justify the restriction of rights under Article 8. First, the Russian Government puts forward the public interest – legitimate in itself – in protecting the ‘traditional family union’. This interest is especially weighty in the eyes of the Russian Government, since, according to Russia’s Constitution, the traditional family enjoys the special protection of the state which is supposed to protect it and promote it. However, the Court found the argument less persuasive, noting that recognition of same-sex couples would not undermine the social and legal value of traditional opposite-sex marriages. 31
Regarding the second alleged interest, the Government's decision to deny legal recognition aimed to respect the will of Russian citizens. In Russian society, there is a limited acceptance of same-sex couples. Applying the reasoning in Oliari to the Russian context would hence be a flawed decision, to the extent that same-sex couples in Italy enjoyed much higher social approval and these two jurisdictions are not comparable. In this regard, the Court notes that ‘although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of people from minorities and avoids any abuse of a dominant position’. 32
While Oliari was an ‘until social norms say I do’ judgment, 33 in the sense that recognition was supported by society at large, Fedotova refuses to subject the right to respect for family life to domestic social approval towards LGBTQ couples. This passage better aligns with the counter-majoritarian aspirations of the tradition of human rights embedded in liberal constitutionalism and protected by judicial review, reminding us that rights should not be made contingent to the desires and whims of the majority. 34
The third interest, the protection of minors from the promotion of homosexuality, was not reiterated before the Grand Chamber, as it had been flatly dismissed in a previous judgment against Russia (Bayev). 35 The judgment in question declared Russia's ban on ‘gay propaganda’ incompatible with the Convention as resting on a ‘predisposed bias on the part of the heterosexual majority against the homosexual minority’. 36
In the absence of any overriding public interests presented by the Russian Government, the Court concluded that there is an incompatibility between the absence of a specific legal framework and Article 8 of the Convention. It thereby affirmed the importance of legal recognition and protection for same-sex couples.
Analysis
This section offers a critical appraisal of the main argumentative passages of the judgment. It also outlines the impact of the decision on the case law of the Court and on the larger geopolitical tensions around clashing notions of human rights.
Registration, where art thou?
The Court's judgment in Fedotova is somewhat hesitant when it comes to explicitly stating that Russia is compelled to introduce a comprehensive regime in the form of registered partnerships. Unlike the Oliari judgment, 37 the Fedotova judgment fails to speak of a right to a registered partnership. It hence fails to openly embrace the view according to which only comprehensive recognition would be compatible with the Convention, as opposed to the introduction of scattered legal protections across civil codes and administrative laws. 38 The latter view argues that a comprehensive legal framework, for instance in the form of registered partnership, is not required under previous case law, and that amending specific legal provisions in applicable family and administrative law is sufficient. Such a view is endorsed by the dissenting opinion of the Polish and Armenian judges in the Buhuceanu decision delivered against Romania last May and remains virtually possible if we were to adopt a narrow reading of the decision in Fedotova. 39 While some scholars have criticized this hesitancy of the Court for leaving same-sex couples in a limbo, 40 a contextual reading of the judgment suggests that a right to same-sex registered partnerships is discernible.
Although the Court does not explicitly speak in Fedotova of registration, it does make references that suggest such a recognition mechanism is necessary, by referring to that ‘general legal framework’ described in Oliari and a need to fill it with core rights. Furthermore, a contextual reading cannot fail to notice how the previous reasoning in Oliari expressly mentioning ‘civil union[s] or registered partnership[s]’ was only dormant. The subsequent Buhuceanu judgment reaffirms the Court's position on the right to registration. 41 On that occasion, the Court noted the insufficiency of the current Romanian legal framework which only allowed same-sex couples to enter into private contractual agreements to gain limited legal protections. The Court hence moved to note that ‘the applicants have a particular interest in obtaining the possibility of entering into a form of civil union or registered partnership in order to have their relationships legally recognized and protected – in the form of core rights relevant to any couple in a stable and committed relationship – without unnecessary hindrance’. 42
The following judgment against Ukraine, issued on 1 June 2023, addressed criticism regarding the Court's reluctance to engage in discrimination analysis. In Maymulakhin, the Court issued a landmark ruling on same-sex families’ rights based on Article 8 taken in conjunction with Article 14, enshrining the ban on discrimination. Ironically, however, the discrimination analysis renders the Article 8 analysis more succinct. The Court does not explicitly speak of a right to registration in this case, but rather acknowledges that if Ukraine were to introduce a registered partnership, this law would be consistent with the Convention and previous case law. 43 Yet the assessment is merely virtual, since the state seemed to have no real intention of passing the law. 44 This raises questions about whether the Court’s approach is consistent and settled regarding this point – whether same-sex registered partnerships are mandated under the Convention. However, it seems like the Court is resolved to move forward in that kind of incremental fashion that characterizes many doctrinal advancements made under the Convention, with subsequent adjustments forming an inherent feature of the approach. Doubtless, the Oliari and Buhuceanu reasonings remain valuable stepping-stones to claiming a right to same-sex registered partnerships in other state parties to the Convention.
Content of recognition: Strong or weak?
The content of the regime is also becoming thicker, thanks to the aforementioned incremental approach. Continuing a previous line of cases, Oliari spoke of the need to introduce ‘core rights’. 45 Amongst them were, ‘inter alia, the mutual rights and obligations…towards each other, including moral and material support, maintenance obligations and inheritance rights’. 46 Fedotova represents a step forward by mentioning (silently introducing) taxation as a public law benefit – without it being mentioned in Oliari, Fedotova or in the following Maymulakhin decision. Amongst the core rights that states must grant are, according to the Court, maintenance, taxation or inheritance as well as rights and duties in terms of mutual assistance. 47 The Buhuceanu decision reinforces the importance of ensuring core rights and specifically mentions property, maintenance, inheritance and the ability to rely on the existence of the relationship in dealings with authorities. 48 It also acknowledges the problem ensuing from the inability of same-sex couples to access ‘numerous social and civil rights that are provided by law for married couples’. 49 The last decision of the saga (Maymulakhin) uses the more general formula of ‘moral and material support’. 50
The overall picture is a fragmented one, with the Fedotova judgment standing out as the boldest in introducing taxation as a core aspect of recognition. In this sense, the Fedotova judgment seems to be more inclined to envision a stronger recognition model, as opposed to a weak one, able to confer ‘nearly’ the same incidents of marriage. 51
However, it is unfortunate that the Court does not address public law benefits more prominently, both in Fedotova and the subsequent line of cases, focusing instead on private law ones. It will be important for future case law to more clearly highlight the significance of public law benefits in the lives of same-sex couples, as relying solely on private law benefits may shift the burden of care from the state to the parties involved, problematically leading to what is referred to as the ‘privatization of care’ in scholarship. 52
The role of consensus
Consensus amongst Contracting Parties on a certain issue is one of the main factors employed by the Court to determine the margin of appreciation for the state in the matter at stake. The margin, in turn, consists of a certain leeway for states to take substantive policy decisions, with the Court maintaining, however, the power to supervise and monitor the exercise of states’ discretionary power. The existence of consensus allows the Court to restrict the margin of appreciation. However, its use continues to lack consistency and attract a barrage of criticism. 53
A specific criticism levelled at the use of the consensus doctrine in the case under examination concerns the heterogeneous group of (30) states listed by the Court to outline the existing agreement around the recognition of same-sex unions. The Court, according to Claire Poppelwell-Scevak, groups together states that recognize non-marital unions such as registered partnerships with states that recognize same-sex marriage or both. 54 According to the author, this move is unwarranted since the Court refuses to find a right to same-sex marriage under the Convention and should induce the judges to exclude states with same-sex marriage from the count (only states with register partnerships matter for purposes of consensus around registered partnerships). I believe that this criticism is unpersuasive. An a fortiori argument sustains the contention that if states are willing to introduce same-sex marriage, they would be willing to at least recognize register partnerships, which continue to come across as a form of lower protection in the collective social and legal imaginary. 55 While I do not subscribe to the view the registered partnerships are inferior to marriage, one cannot fail to recognize that this view still holds its grip in scholarship, political activism and society at large, with states remaining more reluctant to introduce same-sex marriage to protect its ‘sanctity’ and traditional understanding. 56
A more persuasive criticism concerns the contradictory grounds on which the interpretation of the margin of appreciation rests. Particularly, it concerns the two conflicting forces of consensus, on the one side, and the sensitive moral or ethical issues raised by the case, on the other. 57 While the former calls for a restriction of the margin, the latter dictates its expansion. The Court resolves the conflict by arguing that the variable concerning the delicate moral and ethical issues at stake weigh in especially when there is no consensus of the Contracting Parties either around the importance of the interest or the means to protect it. 58 However, there are dangers with failing to duly account for the delicate nature of similar issues and the challenges that they pose to the legitimacy of the Court's intervention. The dissenting opinion of the Russian Judge Lobov astutely stresses this point by noting how the Court de facto ‘use[s] judicial compulsion at will to brutally force social changes in the Contracting States’. 59 A thorough analysis of similar dangers would reinforce, rather than weaken, the Court's reasoning and the subsequent implementation of its judgments, demonstrating that the moral and ethical concerns are not quickly dismissed. 60
A second more problematic aspect concerns the inevitable tension between what I call micro- and macro-consensus. In its margin of appreciation doctrine, the Court looks at the existence of shared views, legislation or court judgments around a certain issue across its now 46 Contracting Parties. As it operates in a delicate political landscape consisting of quite heterogeneous states that reach as far as the Caucasus, and as a supranational court that keeps stressing its subsidiary role, 61 the ECtHR always strives to strike a fair balance between making doctrinal advancements and duly accounting for the diversity of Contracting Parties. 62 This type of consensus is what I shall call ‘macro-consensus’ amongst Contracting Parties. On the other hand, however, the judgments delivered against Russia, Ukraine and Romania bring to the fore another kind of shared agreement, which is the internal perception and societal approval of a certain issue – such as the legal recognition of same-sex couples (‘micro-consensus’).
In the three cases mentioned, the Court had to grapple with marked social disapproval of same-sex unions. This brings the question of how to reconcile the (shifting but here clearly) majoritarian 63 nature of macro-consensus – that is, the idea that there should be an agreement of states around a certain issue to force states swimming against the tide to also comply – and the idea of the anti-majoritarian nature of human rights domestically. 64 Under the latter view, rights cannot be made contingent on social approval. Therefore, it becomes irrelevant whether 80% of Russians are against same-sex marriage and 20% believe homosexuality a disease. 65
While the two forms of consensus clearly pursue two different objectives, the doctrine of the consensus of the Contracting Parties fails to foreground the anti-majoritarian nature of human rights at the ECHR level 66 by subordinating the emergence of Convention rights to the existence of shared, majoritarian views amongst such Parties. For instance, the reluctance to recognize a right to same-sex marriage rests on the lack of this type of consensus. But should consensus matter in order to recognise the existence of a such an important right? A similar approach can expose the Court to additional criticism.
To avoid this kind of criticism, an option on the table would be to do away with consensus in a fractured Europe and recognise rights that emerge under an evolutive interpretation of the Convention regardless of numerical consensus amongst the member states. This doctrinal shift has been discussed in scholarship precisely in relation to same-sex marriage. 67 An additional possibility is to downplay its relevance in cases that ‘touch[] on particularly important facets of their personal and social identity’, as when the family rights of LGBTQ couples are at stake. In such cases, the Court could use the ‘important facets’ variable as the main one in restricting the states’ margin of appreciation.
Geopolitical relevance of the judgment
While acknowledging that the Fedotova decision is not immune from criticism, it nonetheless holds immense significance for LGBTQ communities within the State Parties to the ECHR, both in its own right and as a catalyst for future litigation.
As Judge Wojtyczek observes in his dissenting opinion, the case may not have immediate practical consequences for the domestic legal system of the defendant state, but it raises general questions that carry great importance for the remaining 46 states in the Convention system, particularly those that do not recognize same-sex unions. 68 Therefore, despite Russia's formal withdrawal from the Convention in September 2022, 69 this ruling establishes a universal legal precedent destined to profoundly transform the prevailing legal approach to same-sex relationships in more conservative societies. 70
Two major subsequent judgments against Romania and Ukraine were delivered in May, with an astonishingly short time gap between them. Yet, the Fedotova decision is expected to trigger further litigation in other states. States lacking any form of recognition for same-sex couples include Albania, Azerbaijan, Bosnia-Herzegovina, Bulgaria, North Macedonia, Turkey, Georgia, Lithuania, Montenegro, Moldova, Serbia and Ukraine. Couples residing in these countries can now leverage a powerful set of precedents to pursue legal action against their respective states. Additionally, while Slovakia and Poland provide some baseline legal protection, their recognition is limited to unregistered cohabitation, consistently deemed incompatible with the Convention. 71 Consequently, couples from these countries can also initiate similar cases before the Court. When one reflects on the widespread erosion of LGBTQ people protections occurring globally, 72 the Fedotova judgment represents a notable advancement within the regional system of the ECHR. 73
Nevertheless, this undisputed victory for LGBTQ communities in Europe gives rise to delicate considerations concerning the foreseeable geopolitical implications of the Fedotova judgment. These considerations are especially delicate considering the present cleavage around social and family values and distinct conceptions of human rights prevalent across jurisdictions within the Convention space.
The Russian Ministry of Foreign Affairs described the Council of Europe as a platform for Western ‘narcissism’ and its ‘ultraliberal ideology’. From the Russian Government's perspective, the ‘West’, sometimes synonymous with the United States or globalization, 74 monopolized the acquis of the ECtHR, promoting a seemingly universal conception of human rights, which is, in reality, contingent. 75 In contrast, Russia opposes this ultra-liberal ideology propagated by international organizations like the ECtHR and champions a distinctive ‘Russian legal tradition’ that prioritizes collective goods over individual rights and shifts the focus away from the individual as the natural beneficiary of the human rights paradigm. 76
The contentious critique presented by Judge Wojtyczek's dissenting opinion is emblematic of this cleavage. According to the judge, ‘Europeans are also very divided on fundamental anthropological and moral ideas constituting the foundation of human rights, and the divergence in this domain has tended to grow in the last few decades. In particular, there is no agreement on the question of who man is, and what his identity, his nature and his final destiny are.’ 77 This passage echoes the challenge posed by the profound cultural, social and political heterogeneity among ECHR Contracting Parties. Even in the aftermath of Russia's departure, many states continue to uphold a traditional understanding of the family. In this sense, the Court finds itself navigating hostile territory marked by deep disagreement around fundamental notions of not merely legal character but also moral, epistemological and even eschatological one (this is the meaning attributable to the judge's reference to the ultimate destiny of mankind on Earth).
As a result, this significant step forward in the legal recognition of same-sex couples will inevitably become entangled in the ongoing saga of the culture wars taking place in Europe and around the world. 78 It will affect the Court's ability to navigate and resist the resurgent culture wars that have been reignited by its recent doctrinal shift in the interpretation of Article 8. It will also affect its ability to ensure the enforcement of its decisions within staunch bastions of the traditional family. 79 The task at hand, then, is to preserve the Court's ongoing legitimacy and the effectiveness of the human rights system it administers in the midst of deep divergences on these foundational issues.
Conclusion
The Fedotova ruling is a major victory for European LGBTQ communities and is expected to have a profound impact on the legal approach to same-sex relationships in Contracting Parties reluctant to provide legal recognition. The judgment sets a powerful precedent that can be mobilized by same-sex couples in states where they lack legal protection. The precedent-setting potential of the case has already been realized with two major decisions against Romania and Ukraine within weeks of each other in May 2023. It is predicted that that more cases will follow and that the Court will continue to push for legal recognition of same-sex couples in reluctant Contracting Parties.
However, the Court's ability to maintain its legitimacy and the Council of Europe's ability to monitor the implementation of its judgments in the face of existing divergent views on human rights and family values will be crucial. The decision has the potential to shape the ongoing struggle for LGBTQ rights. Yet it also highlights the need to carefully consider the follow-up to these judgments. In the end, effective protection for LGBTQ families will require confronting the challenges posed by the culture wars head-on and ensuring the Court's continued ability to enforce its rulings in states that strongly oppose them.
