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Austria: Constitutional Court Orders Legalization of Same-sex Marriage
(Blogmensgo, gay blog of December 10, 2017) The Austrian Constitutional Court (VfGH = Verfassungsgerichtshof) ordered in a judgment published on December 5, 2017 that the ban of marriage between same-sex partners is illegal and unconstitutional based on its discriminating character. This ruling overturned lower-instance decisions and also prescribed to legalize gay marriage by 2019 the latest.
A lesbian couple had gone to court because they considered the ban on same-sex marriage as discriminating because it is solely based on the partners’ sexual orientation. The 14 highest constitutional judges supported this opinion and considered the ban unconstitutional. In addition, they validated their ruling immediately and therefore allowed the two women to get married immediately.
Political realization of same-sex marriage until December 31, 2018
The judges considered the ban on same-sex marriage as a violation of the equal-treatment principle and the anti-discrimination laws based on sexual orientation. This is why the legislator now has time until January 1st, 2019 to legalize gay marriage. In case the parliament fails to do so, this ruling will automatically come into effect.
One of the arguments for the discriminating character of the current legal situation is that when disclosing their marital status, people automatically disclose their sexual orientation as well because the civil union introduced in 2009 only applies to gay and lesbian couples. A person’s marital status, however, is part of private and not public information, and is therefore protected by privacy laws.
As a matter of consequence, the judgment now wants to extend civil unions (“life partnerships”) to straight couples. Gay partners may already adopt children as it is but they will soon have the right to legally marry. On the other hand, civil unions will not automatically be converted into marriages – both systems will coexist from now on and apply to couples regardless of their sexual orientation. In disclosing their marital status, people will no longer automatically disclose their sexual orientation.
Politicians have to act now
The new ruling now puts politicians to work: Formed after the parliamentary elections of October 15, 2017, the coalition of conservative party ÖVP (not much in favor of gay marriage) and extreme-right FPÖ (openly against it) will have to legalize something they do not really want. Sebastian Kurz (ÖVP), the prospective new chancellor, had intended to align civil unions with marriage, without formally opening the latter one to same-sex couples.
The social democrats (SPÖ), the liberals (NEOS) and the green party who were in favor of gay marriage, had already tried to legalize it in June 2017 but were outvoted by ÖVP and FPÖ then.
A first in Europe
The judgment of the Austrian highest court is the first judicial decision on same-sex marriage in Europe. In 15 other European countries, legalization of same-sex marriage either was the result of a parliamentarian legislation process (as in the Netherlands in 2001, in Spain in 2005, in Iceland and Portugal in 2010, in France in 2013, in England and Luxemburg in 2014 and in Malta, Finland and Germany in 2017) or of a referendum (Ireland in 2015).
So Switzerland and Liechtenstein will be the only German-speaking countries without same-sex marriage in early 2019, the latest.