It is the first time a Constitutional Court in Europe has held that the exclusion of gay people from civil marriage is unconstitutional. The Austrian government and parliament should quickly adopt marriage equality legislation.
The court ruled that the law on civil marriage, which limits civil marriage to a union between a woman and a man, violates the prohibition against discrimination in the Austrian constitution. The court explicitly stated that a ban on same-sex marriage conveys the message that lesbian, gay, or bisexual people are not equal to heterosexuals and concluded that this amounts to discrimination.
“The judges ruled that banning same-sex couples from civil marriage is a violation of the fundamental principle that people are entitled to be treated equally, and that the state is not allowed to discriminate against people based on their personal characteristics,” said Boris Dittrich, the lesbian, gay, bisexual, and transgender (LGBT) rights advocacy director at Human Rights Watch. “Gay, lesbian, and bisexual Austrians have been waiting for a long time for marriage equality, and now is the time for parliament to deliver with marriage equality legislation.”
The court gave the government and parliament until January 1, 2019, to agree on legislation allowing same-sex couples to enter civil marriage. If the government does not act by then, the civil marriage law will become unconstitutional.
The case was brought by two women who have a registered partnership but wanted to get married. A magistrate in Vienna denied them their marriage license, as did the Vienna administrative court.
In 2010, Austria adopted a law on registered partnership, applicable only to same-sex couples. The idea behind the law was to minimise discrimination against same-sex couples, while continuing to restrict civil marriage to different-sex couples.
In the December 4 ruling, the Constitutional Court argued that over the course of time, the differences between civil marriage and registered partnership have diminished. For example, since 2016 same-sex couples have been allowed to adopt children, and all couples have equal access to medically assisted reproduction.
The court also concluded that the law on registered partnership, which allows only same-sex couples to register their relationship, discriminates against different-sex couples. Therefore, in the absence of any action by the government and parliament, as of January 1, 2019, registered partnerships will also be opened to different-sex couples.
Twenty-four countries already have marriage equality. It is expected that Australia will follow very soon, after its Senate voted in favour of such legislation in November. The Australian House of Representatives is discussing the legislation this week. In other countries, including Chile and Taiwan, such legislation is being drafted.
Many western European countries have introduced marriage equality. The Netherlands was the first in the world, with an equal marriage law that came into force in 2001. This year, Germany and Malta joined the group of European countries in which all couples wishing to legally marry are treated equally.
Constitutional courts in South Africa, Colombia, and Taiwan have also ruled that a ban on same-sex marriage in unconstitutional.
“Austria’s constitutional court has sent a powerful message that when it comes to the legal status of relationships, separate is not equal,” Dittrich said. “This could provide incentives for same-sex couples in other countries to turn to their courts to claim equal marriage rights.”