By Mahasweta Muthusubbarayan
Austrias Constitutional Court delivered a landmark judgment last week, allowing marriage for homosexual couples in the country. The decision on December 4th, 2017 declared as unconstitutional, all existing legal provisions which provide right to marry exclusively to heterosexual couples. The Court struck down the use of the phrase of different sex in S. 44 of the General Civil Code and the federal Registered Partnership Act as being in violation of the principles of equality and non-discrimination based on personal impediments enshrined in Article 7(1) of the Austrian Constitution. The move comes as a welcome indicator of open-mindedness and advancement with the times in a predominantly Catholic nation, where homosexuality has faced opposition from both political and religious fronts.
Reasons for the decision
The Courts ex-officio review of the existing marriage and partnership laws was prompted by a petition filed by two women living in a registered civil partnership who were denied the right to enter into a formal marriage by both the Viennese Municipal authorities as well as the Vienna Administrative Court. So far, same-sex couples have been allowed to enter into registered civil partnerships but not marriage. Meanwhile, opposite-sex couples have been denied the option of a civil partnership and have only been given the right to marry. After an examination of the existing laws, the Court came to the conclusion that the existence of two separate institutions for homosexual and heterosexual couples will lead to an inference that homosexuals are not equal to heterosexuals and hence the law must be changed.
Understanding civil partnerships
The Registered Partnership Act was adopted in 2009 and came into operation in 2010. This law permitted homosexual Austrians of full legal age and capacity to enter into a registered civil partnership for life. Prima facie, there is not much difference between a civil partnership and a marriage. A civil partnership also entails mutual rights, obligations, respect, and trust, based on the principle of equal participation of the partners. Partners also have an option to retain or change their surnames. The right of cohabitation and other incidents of marriage are also provided. Civil partnerships can also be dissolved on the grounds of fault (includes physical violence and mental cruelty), irretrievable breakdown and mutual consent (alimony and division of property follow). Same-sex couples in a civil partnership can also adopt the children of one of the partners from a former relationship or marriage and can also make use of assisted reproduction for procreation.
However, as far as legal recognition goes, a civil partnership has a status lesser than marriage and is treated differently by the law. There are differences, albeit very few, between the two institutions. A couple of examples are the minimum age for entering into the relationship and the quantum of maintenance granted on the dissolution of the relationship.
The Registered Partnership Act was enacted with good intentions, to eliminate discrimination against same-sex partners and provide them with legal protection; but due to prevailing divided views on homosexuality and notions of tradition, the law created two separate institutions of marriage and civil partnerships to keep everyone happy.
Effect of the judgment
As per the principle of equal treatment, the Court has ruled that same-sex couples will have the right to marry and heterosexual couples will be able to opt for civil partnerships. The repeal of the provisions which have been struck down is to take effect on December 31st, 2018 unless the Legislature repeals them earlier. The Court observed that there has been a progressive convergence between a registered partnership and marriage, the effect being that the two legal institutions are largely equivalent in terms of their substantive content and legal consequences, with very few differences. An emphasis was laid on the right to privacy of homosexuals, with the Court noting that the different terms used to designate a persons marital status (married vs. living in a registered partnership) have the inadvertent effect of disclosing a persons sexual orientation, sometimes even in irrelevant situations, thereby exposing homosexuals to possible discrimination and bias. The Court, therefore, concluded that the distinction of the law between opposite-sex and same-sex relationships as two different legal institutions violates the principle of equal treatment, which forbids any discrimination of individuals on grounds of personal characteristics, such as their sexual orientation.
As mentioned earlier, the repeal pronounced by the Court refers only to the phrase of different sex in the provisions of the General Code of Civil Law on marriage and those provisions of the Registered Partnership Act which limit registered partnerships to same-sex couples. The Registered Partnership Act is not repealed in its entirety and will continue to operate as the binding legal force behind existing and future civil partnerships. The effect is that all Austrian couples, homosexual or heterosexual, will henceforth have a choice between registered partnerships and marriage. The Austrian government is now obliged to revise and modify the law in accordance with the ruling. Even if it doesn’t, the provisions in question will stand revoked from 2019.
Operation of the repeal
The judgment will take legal effect only from December 31st, 2018 unless the legislation is amended before that. As per Article 140(5) of the Austrian Constitution, the Constitutional Court may either specify a time-limit for voidance of the unconstitutional law or if no time limit is specified, the voidance will have to be affected by the government within 18 months. This provision has probably been enacted for legislative and administrative convenience. The Court has used its mandate under Article 140 to fix the last date for repeal of the provisions which have been struck down.
However, for those couples who filed a complaint with the Constitutional Court even before it pronounced the repeal, the repeal takes effect on the date of service of the decisions of the Constitutional Court itself and they can, therefore, marry even before December 31st, 2018.
Reactions to the decision
Helmut Graupner, counsel for the petitioners, applauded the Austrian court for recognising equality for same-sex couples as a “fundamental human right“. According to him, the Austrian court is the first in Europe to constitutionally reject a marriage ban for same-sex couples, and other countries have merely legalized gay marriage through political methods. The Homosexual Initiative Vienna (HOSI) also appreciated the decision.
The Courts decision has evoked divergent stands from the country’s incoming coalition government expected new Chancellor Sebastian Kurzs conservative People’s Party (OVP) said they would accept the decision (they earlier voted against same-sex marriage), but the far-right Freedom Party (FPO) criticised the court saying that the Court has accorded equal treatment for something that is not equal. According to them, only marriage between women and men should be protected as only these partnerships can create children.
The decision has brought Austria in line with other European powers such as Britain, Germany, France, Netherlands, Spain, etc. More than 20 countries around the world now recognize same-sex marriage.
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