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.

[Antonio the Sixth]

It always annoys me when these things are enacted by court rulings rather than through a democratic vote, tbh.

[TDAS04]

That would be great.

[afleitch]

It always annoys me when these things are enacted by court rulings rather than through a democratic vote, tbh.

So only Ireland legitimately enacted it. Unless you count parliaments, which like the judiciary are part of government?

[Antonio the Sixth]

It always annoys me when these things are enacted by court rulings rather than through a democratic vote, tbh.

So only Ireland legitimately enacted it. Unless you count parliaments, which like the judiciary are part of government?

Parliaments are elected representatives of the people tasked with making political decisions in their name. Judges are magistrates tasked with enforcing those decisions. The difference is pretty obvious.

[America Needs R'hllor]

It always annoys me when these things are enacted by court rulings rather than through a democratic vote, tbh.

Equal human rights are universal and do not depend on voters. No one can give me my rights- they are mine. So court rulings are just as good as legislation.

[Antonio the Sixth]

Rule of law is founded on the principle that the people, or their elected representatives, make decisions, and judges enforce those decisions. Fundamental rights have to be decided and agreed upon by the people (ideally with a supermajority) before being codified in a constitution, at which point they are to be enforced. If this principle is turned on its head, is opens the door for judges to declare anything they want to happen a "fundamental right" and become unelected lawmakers.

Now, maybe the Austrian constitution actually does mandate equal marriage rights for same-sex couples - in this case, kudos on the judges for doing their jobs. But given when it was written, I highly doubt that's the case.

[○∙◄☻¥tπ[╪AV┼cVê└]

It always annoys me when these things are enacted by court rulings rather than through a democratic vote, tbh.

So only Ireland legitimately enacted it. Unless you count parliaments, which like the judiciary are part of government?

Remember the Maine!

[Lourdes]

I have a more mixed opinion about putting gay marriage to a vote. On one hand, I don't think that it's a good idea to put the question of human rights to voters, but a majority vote in favor of gay marriage can show LGBT people that a majority of their fellow citizens support their rights, which you can't do with court rulings or legislation. Like in Brazil and Colombia the courts legalized gay marriage, but I think the majority of people are opposed to it in both countries.

[TDAS04]

It always annoys me when these things are enacted by court rulings rather than through a democratic vote, tbh.

If it's the only way, and it works, it's fine.  In some cases, the majority of the people don't oppose it, but elected officials are stalling.  Then the court finally steps in (seems to be the case in Taiwan, but the government still hasn't acted).  In any case, "the will of the people" shouldn't determine everything. 

Tony, do you or do you not agree with SCOTUS's decision Loving v Virginia to legalize interracial marriage nationwide, even when most people didn't like it?

[Antonio the Sixth]

Tony, do you or do you not agree with SCOTUS's decision Loving v Virginia to legalize interracial marriage nationwide, even when most people didn't like it?

Loving v Virginia is far less of a stretch of the wording and intent of the 14th Amendment, especially given the context in which it was passed. I'd be open to be convinced that Obergefell is the necessary consequence of the Loving precedent, but I'm not entirely sure if I agree, and either way, this is about the Austrian constitution and not the US one.

[MaxQue]

Rule of law is founded on the principle that the people, or their elected representatives, make decisions, and judges enforce those decisions. Fundamental rights have to be decided and agreed upon by the people (ideally with a supermajority) before being codified in a constitution, at which point they are to be enforced. If this principle is turned on its head, is opens the door for judges to declare anything they want to happen a "fundamental right" and become unelected lawmakers.

Now, maybe the Austrian constitution actually does mandate equal marriage rights for same-sex couples - in this case, kudos on the judges for doing their jobs. But given when it was written, I highly doubt that's the case.

Sciences Po Paris is really bad at teaching the three powers theory then. Juridicial power isn't subordonned to legislative power.

[🦀🎂🦀🎂]

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

[politicallefty]

Loving v Virginia is far less of a stretch of the wording and intent of the 14th Amendment, especially given the context in which it was passed. I'd be open to be convinced that Obergefell is the necessary consequence of the Loving precedent, but I'm not entirely sure if I agree, and either way, this is about the Austrian constitution and not the US one.

It took 99 years for that ruling to come down after ratification, and even then, less than 20% of the general public supported the idea. I know this is off topic, but if the 14th Amendment was limited to just race based on original intent, I think it would say so. If Loving had gone the other way and upheld so-called state's rights, I wouldn't discount the possibility of having areas of this country where interracial marriage was still illegal (or at least not recognized).

From my point of view, the Fourteenth Amendment does not require interracial marriage, same-sex marriage, etc. What it requires is that so long as the government offers the rights and privileges of marriage, those rights and privileges cannot be denied to interracial couples, same-sex couples, etc. I reject most originalist arguments, but I do consider myself to be a textualist.

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

[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.

[politicallefty]

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.

[Tintrlvr]

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.

[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

[America Needs R'hllor]

Great! May more and more countries follow suit.