On July 16, 2014, the European Court of Human Rights affirmed in Hämäläinen v. Finland that "same-sex" marriage is currently not a right protected under the European Convention on Human Rights. But for how long? To resolve the question of whether the Convention provided a right to "same-sex" marriage, the Court did what it most always does: survey the laws of member States and Council of Europe policy to determine whether a "European consensus" exists on the issue. Thus, rather than interpreting the text of the Convention based on the text's plain, historical meaning, the Court interprets the text based on the modern-day interpretations of other nations. How many nations and which nations is anyone's guess. In Hämäläinen, because only ten member States allowed "same-sex" marriage, the Court held that no European consensus currently existed, and therefore there was no violation of Article 8.
For another view of this post go to the Global Justice Blog at http://globaljusticeblog.blogspot.com/2014/09/echr-no-right-to-same-sex-marriage-but.html.