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Austria: Same-Sex Couples Allowed to Get Married Starting January 2019

(Dec. 12, 2017) On December 4, 2017, the Austrian Constitutional Court (Verfassungsgerichtshof Österreich, VfGH) struck down the provisions of the Civil Code and the Registered Partnership Act that restrict marriage to persons of different sexes and registered partnerships to persons of the same sex, respectively.  The Court held that the provisions violate the prohibition of discrimination in the equality clause of the Federal Constitutional Law. The annulment of the provisions takes effect on December 31, 2018. The remaining provisions of the Registered Partnership Act will remain in force.  Starting January 1, 2019, same-sex couples and different-sex couples will have the option to choose between a marriage and a registered partnership. (VfGH, Dec. 4, 2017, Docket No. G 258-259/2017-9 (VfGH G 258-259/2017-9), VfGH website (in German); Allgemeines bürgerliches Gesetzbuch für die gesammten deutschen Erbländer der Oesterreichischen Monarchie [ABGB] [Civil Code], JUSTIZGESETZSAMMLUNG [JGS] No. 946/1811, as amended, § 44, Rechtsinformationssystem (RIS) [Legal Information System]; Eingetragene Partnerschaft-Gesetz – EPG) [Federal Act on Registered Partnership (Registered Partnership Act – RPA)], BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I No. 135/2009, § 2, RIS.)

The VfGH held that even though there are no substantial differences between the two legal institutions of marriage and registered partnership in Austria, the fact that two different legal institutions with different names exist constitutes discrimination. (VfGH G 258-259/2017-9, at 11 & 15.) It stated that even though both legal institutions recognize “permanent unions between two equal persons to provide mutual support and consideration,” they are treated unequally. Having two different legal institutions signifies to the public that same-sex relationships are different from different-sex relationships. (Id. at 10 & 16 (translation by author).) Having a different name for the marital status discriminates against same-sex couples by forcing them to reveal their sexual orientation even in situations in which sexual orientation is irrelevant, thereby aggravating the historical discrimination against same-sex couples. (Id.)

Background

The VfGH’s examination of the provisions of the Civil Code and the Registered Partnership Act resulted from a marriage application of a same-sex couple that had been denied by the city of Vienna and the Administrative Court of Vienna. The city and the Court denied the request on the grounds that section 44 of the Civil Code restricts marriage to persons of different sexes. The couple filed a complaint with the Constitutional Court alleging a violation of their right to marry and their rights to equal treatment and nondiscrimination on the grounds of gender and sexual orientation, as guaranteed by the European Convention on Human Rights, the Federal Constitutional Law, and the Basic Law on the General Rights of Nationals; they also alleged a general violation of their rights by the application of an unconstitutional law. (Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), arts. 8, 12, & 14, Nov. 4, 1950, 213 U.N.T.S. 221, European Court of Human Rights website; Bundes-Verfassungsgesetz – B-VG [Federal Constitutional Law], BGBl. No. 1/1930, as amended, art. 7, RIS; Staatsgrundgesetz – StGG [Basic Law on the General Rights of Nationals], REICHSGESETZBLATT [RGBl.] [IMPERIAL LAW GAZETTE] No. 142/1867, art. 2, RIS.)

The VfGH decided to examine the constitutionality of the provisions of the Civil Code and the Registered Partnership Act on its own initiative (ex officio), because it would have had to apply the two laws in connection with addressing the pending complaint by the same-sex couple. (Federal Constitutional Law, art. 140; VfGH, Prüfungsbeschluss [Examination Order], Oct. 12, 2017, Docket No. E 230-231/2016-27, VfGH website.) (See also Jenny Gesley, Austria/European Court of Human Rights: No Discrimination If Heterosexual Couple Is Denied Access to Registered Partnership, GLOBAL LEGAL MONITOR (Nov. 16, 2017).)