Constitutional Court Strikes Down Austria’s Same-Gender Marriage Ban

In a significant ruling, Austria’s Constitutional Court has deemed the country’s failure to recognize same-gender marriage unlawful.

The Constitutional Court arrived at this decision after two women challenged a 2009 law that grants same-gender couples the right to civil partnerships — but not marriage. The couple claimed that the legislation unfairly discriminates against them on the basis of sexuality.

The Court ultimately agreed and, in a decision released Tuesday, December 5, stated:

The distinction between marriage and civil partnership can no longer be maintained today without discriminating against same-sex couples,” and that the distinction between the two forms of union meant that “people with same-sex sexual orientation are not equal to people with heterosexual orientation.

The 2009 law had granted same-gender couples nearly all the same rights of marriage, meaning that to keep couples out of marriage as an institution was no longer for any strict legal purposes — for example, the notion that governments wish to support child-rearing families. Instead, that difference relegated same-gender partnerships to second-class status for no compelling interest.

Therefore, the Constitutional Court ruled that the restriction on same-gender marriages should end by the close of 2018, unless Austria’s lawmakers choose to act sooner. That doesn’t seem likely, however.

In June, the presiding Austrian People’s Party and its soon-to-be coalition partners voted against changing the law to recognize same-gender marriages. Given this political environment, it appears more likely that lawmakers will simply let the clock run out, rather than take immediate action.

The New York Times reports:

The Austrian People’s Party — whose leader, Sebastian Kurz, won a general election in October and is expected to be sworn in as chancellor in the coming weeks — said it would accept the ruling.

But their potential partners in government, the far-right Freedom Party, criticized the ruling. They said it disrespected the tradition of marriage as a partnership between a man and a woman that is intended for procreation.

“Now there is equal treatment for something that’s not equal,” Herbert Kickl, the party’s secretary general, said in a statement.

Buried in this ruling is another important point that the plaintiffs’ lawyers were keen to stress: The court recognized that there is a fundamental right to same-gender marriage.

Lawyer Helmut Graupner explained, “Accordingly Austria is the first European country to recognise marriage equality for same-gender couples as a fundamental human right. All the other European states with marriage equality introduced it (just) the political way.”

And Graupner may technically be right. While several governments, including UK officials, faced legal challenges that could have established a fundamental right to same-gender marriages, all of the mainland European nations took it upon themselves to legalize marriage equality — either through the usual political process or, in the case of Ireland, at the ballot.

Broadly speaking, this case clearly stands out as a defining moment in the marriage equality fight. Nevertheless, Europe continues to provide a patchwork of recognition for same-gender couples.

Countries like France, Ireland and Germany have same-gender marriage laws in force, but other states — notably Italy and Hungary — confine same-gender couples to civil partnerships or similar unions. And those barriers are becoming harder to maintain, particularly for nations like Italy.

Of course, there are other areas in Europe where same-gender partnerships are banned altogether. Poland and Romania, for instance, do not grant partnership rights to same-gender couples in any meaningful way that recognizes their union.

The Austrian ruling is unlikely to directly impact surrounding member states, or have a broad effect on the overall state of marriage equality across Europe, but if this ruling remains unchallenged, it makes Austria the 16th member state to achieve marriage equality.

And that certainly offers evidence that the “separate but equal” line doesn’t hold up under analysis.

Let’s hope that Austrian lawmakers act swiftly to make marriage equality lawful in 2018, rather than making couples wait an entire year for their fundamental rights to be recognized.

Photo Credit: Nic McBride/Flickr

39 comments

Aries N
Aries N10 days ago

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Paulo R
Paulo R24 days ago

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Paulo R
Paulo R24 days ago

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Paulo R
Paulo R24 days ago

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Maureen G
Maureen G29 days ago

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Peggy B
Peggy Babout a month ago

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Jim V
Jim Venabout a month ago

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Jim V
Jim Venabout a month ago

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Jerome S
Jerome Sabout a month ago

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Jerome S
Jerome Sabout a month ago

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