This contribution assesses the consensus-based analysis and reasoning of the European Court of Human Rights in recent judgments concerning equal marriage rights and compares it to the Court's past jurisprudence on European consensus and the margin of appreciation awarded to Member States regarding the issue of equal marriage rights. The contribution aims to analyse whether there is a parallel to be seen between the rapid global trend of legalisation of same-sex marriage and the development or evolution of the case law of the ECtHR on the same topic. Furthermore, it demonstrates that the Court's consensus-based analysis is problematic for several reasons and provides possible alternative approaches to the balancing of the Court between, on the one hand, protecting rights of minorities (in this case samesex couples invoking equal marriage rights) under the European Convention on Human Rights and, on the other hand, maintaining its credibility, authority and legitimacy towards Member States that might disapprove of the evolving case law in the context of same-sex relationships. It also offers insights as to the future of European consensus in the context of equal marriage rights and ends with some concluding remarks.

The legalisation of same-sex marriage has taken off globally in the last thirty years, especially in Europe; thirty-three countries around the world, nineteen of which are in Europe, have opened up civil marriage to same-sex couples. The Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) have also had their share of equal marriage rights cases before them to decide upon. This contribution discusses the role the two European courts have played in this field and how their case law has developed, in somewhat parallel stages, throughout the years.

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