Austria legalizes gay marriage (effective no later than Jan. 1, 2019)

[Tender Branson]

The CC ruling will come before Christmas and marriages could start as early as Jan 1, 2018:

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http://www.joemygod.com/2017/10/18/austria-constitutional-court-issues-initial-ruling-favor-sex-marriage-final-decision-december

https://kurier.at/politik/inland/vfgh-prueft-eheoeffnung-fuer-gleichgeschlechtliche-paare-in-oesterreich/292.567.898

[Tender Branson]

I really hope the CC has the balls to do it ...

But knowing them (they are quite progressive), it's very likely ...

They already banned the mass data storage law and allow full gay adoptions.

[Tender Branson]

To Tender Branson, what are the provisions of the Austrian Constitution being used to support this ruling?

From what I understand, this lawsuit (by some gay couples and their children) is not about the Constitution itself, but about the Civil Code.

§44 of the Civil Code exactly, which dates back to the early 19th century and says: "a marriage shall be entered by two people of different sex".

The persons who filed the lawsuit say this paragraph discriminates against gay and lesbians and want it changed to just "two people".

The Constitutional Court, which is also responsible for the Civil Code, has found this part to be discriminating to gays/lesbians and primarily ruled in favour of the challengers. They asked the government to submit their take on this topic, but at least the SPÖ will argue in favour ... so things are looking good.

If the CC rules in favour of the challengers, the Civil Code would be updated and the current additional gay/lesbian partnership law would be scrapped - because it would be void.

[Tender Branson]

From what I understand, this lawsuit (by some gay couples and their children) is not about the Constitution itself, but about the Civil Code.

§44 of the Civil Code exactly, which dates back to the early 19th century and says: "a marriage shall be entered by two people of different sex".

The persons who filed the lawsuit say this paragraph discriminates against gay and lesbians and want it changed to just "two people".

The Constitutional Court, which is also responsible for the Civil Code, has found this part to be discriminating to gays/lesbians and primarily ruled in favour of the challengers. They asked the government to submit their take on this topic, but at least the SPÖ will argue in favour ... so things are looking good.

If the CC rules in favour of the challengers, the Civil Code would be updated and the current additional gay/lesbian partnership law would be scrapped - because it would be void.

I see what you're saying, but on what foundation is the Constitutional Court relying on to make that determination? What I mean is what provisions of Austrian law are being used to protect from discrimination?

To be honest, most of my understanding of law is common law, as we use in the Anglosphere. I have little understanding of civil law (as is used in the majority of countries), but I understand it to be much harder to rule in favour of particular rights than in common law countries.

Don't know ... We'd need to wait for the ruling. But I guess the judges might reference the part of the Constitution that says that all people are equal before the law, also when it comes to sexual orientation - as a reason to change the Civil Code.

[Tender Branson]

The relevant part of the Austrian constitution is this:

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https://www.ris.bka.gv.at/Dokumente/Erv/ERV_1930_1/ERV_1930_1.pdf

[Tender Branson]

Man Tony, for a self-confessed Anglophobe you sure to love parliamentary sovereignty.

Isn't that not quite the same thing? I thought parliamentary sovereignty was just that parliament could overrule the courts, not that the courts could not, as an initial matter and before being overruled, countermand parliament.


Anyway, more on-topic, I find it surprising that the Civil Code specifically references marriage being between opposite sexes in language dating from the 1800s. I can't think of another example going back further than the past 50-60 years.

Yeah, the Austrian Constitution is from 1920 (with a major revision in 1929, which granted a lot more powers to the President as a checks-and-balances measure for the government).

The Civil Code is actually from 1811.

[Tender Branson]

Another interesting fact:

* If the Austrian Constitutional Court really rules in favour of changing the Civil Code and makes gay marriage legal, it would be more progressive than the Eurpean Court of Human Rights, which ruled against.

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https://www.theguardian.com/law/2010/jun/24/european-court-of-human-rights-civil-partnerships

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http://www.telegraph.co.uk/news/religion/9157029/Gay-marriage-is-not-a-human-right-according-to-European-ruling.html

So, it will be interesting to see if our court follows the ECHR precedent (keep the ban), or forms a unique opinion (allow it) ...

And someone might then take the matter to the ECHR again, if they legalize it ...

(I agree with Tony, legalizing it via parliament is much better.)

[Tender Branson]

In a press release, the CC announced that their December session will end on Dec. 15th, which means a decision will either come then or the week before Christmas.

[Tender Branson]

Legal as of today (effective 2019):

http://www.independent.co.uk/news/world/europe/austria-same-sex-gay-marriage-legal-constitutional-court-lgbt-rights-start-date-couples-a8092516.html

[Tender Branson]

The ÖVP accepts the decision and won't "throw any stones in the way of legalisation" (hmm, we'll see*).

The SPÖ+NEOS+List "Pilz" and the Remnant Greens all call it a "historic milestone".

The FPÖ and Catholic Church call the ruling "unfortunate" and maintain that marriage is only for heteros because they are the ones who are giving birth to children and should be given priority (the FPÖ favours the current partnership law).

* Because ÖVP and FPÖ have a majority in parliament and are both opposed to gay marriage, they could delay the court order to the latest possible date: Dec. 31st, 2018 - which is the last possible date the Court instructed parliament to change the laws. They could also do so earlier, which means marriages could also start at some point during 2018, if the ÖVP votes with SPÖ, NEOS and List "Pilz". But considering they are soon-to-be in a coalition with the opposing FPÖ, they might delay the new law until the last day possible (and knowing the retarded ÖVP on this issue, they probably will ...)

[Tender Branson]

Other facts:

* The current gay partnership law (which is actually more progressive than the hetero marriage law) will not become void on Jan. 1, 2019 as I have suspected. Instead, it will also become available to hetero couples. So, heteros or gays can either choose between marriage or the partnership law. If they choose the marriage law, they will actually have a worse one (dating back to the 1930s with amendments in between). If they choose the partnership law, they will have the modern one, just that it is not called marriage. IMO, the partnership law should just be scrapped and the current marriage law should be amended along the partnership law to make it fit for 21st century forms of families and relationships.

* Gay couples who are currently in a registered partnership can either remain in that partnership, or marry once the marriage is "opened" no later than Jan. 1, 2019. It remains to be seen if they will have to pay additional fees if they want to marry, but I guess they will have to.

* IVF and full adoption rights for LGBTs are already legal since 2013

* Currently, 60-80% of Austrians support gay marriage (depending on which poll you are using).

[Tender Branson]

The remaining countries in Western Europe now are Italy, Switzerland, Greece (hardly Western Europe though) and Northern Ireland.

Eastern Europe will take quite a bit longer (Estonia, Czech Rep. and Slovenia look promising).

[Tender Branson]

Some excerpts from today's ruling:

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https://www.nbcnews.com/feature/nbc-out/austria-s-supreme-court-paves-way-same-sex-marriage-n826676

[Tender Branson]

SPÖ+NEOS+Pilz all want to change the laws after the Christmas holidays already, so that gays can start to marry early next year - instead of 2019.

But the ÖVP says they will have to "think about it first" ... (and the delaying starts).