Right to marriage
RULING No. 359/2009
Case no. 779/07
Rapporteur: Justice Carlos Pamplona de Oliveira
Ruling of the Constitutional Court
Summary of Part I: A same-sex couple lodged an appeal against a ruling of the Lisbon Court of Appeal that confirmed the decision of a lower court to deny them the possibility of entering into matrimony with each other. They began by alleging that various provisions of the Civil Code are materially unconstitutional, along with the existence of an unconstitutionality by omission because the law failed to provide for the possibility of marriage between persons of the same sex.
They essentially based their position on the principle of equality enshrined by the Constitution. They specifically invoked the aspect of the prohibition of discrimination based on sexual orientation, and the right, which the Constitution also protects, to found a family and to marry under terms of full equality. They added that marriage is an instrument for exercising the right to personal identity and the development of personality, with respect for the protection of the privacy of personal life – rights which must be guaranteed in a state that is based on the rule of law and founded on the primacy of human dignity and freedom.
In response, the Public Prosecutors’ Office argued that the question of an unconstitutionality by omission and the effects that such an omission would generate was incompatible with the concrete-review nature of the case. It said that nothing obliges the infra-constitutional legislative authorities to accept the various sociological concepts of ‘family’ on an entirely equal footing, and that if the Constitutional Court were to uphold the appeal, it would have to hand down an ‘additive decision’ in which it jurisprudentially expanded the existing civil-law institution of marriage itself. The ‘additive decision’ format must be used with particular care, inasmuch as it is difficult for its excessive use to be compatible with the constitutional prohibition on the performance of materially legislative functions by a jurisdictional body – a prohibition that underlies the key structural principle of the separation of power. Inasmuch as it is possible for any of a variety of different sets of legal rules to be fully compatible with the principles laid down by the Constitution, in such a case it would then be necessary to call on the democratically legitimated legislative authorities to subject the matter to the indispensable process of reflection or adopt the appropriate legislative options.
In reply, the appellants focused on the request that the Constitutional Court hold the Civil Code rule that defines marriage as a contract entered into by two persons of different sexes unconstitutional.
The appellants argued that the rule set out in Article 1577 of the Civil Code, which states that marriage can only be entered into by "persons of different sexes”, is unconstitutional to the extent that it prohibits marriage between persons of the same sex. They did not say that the rule which allows persons of different sexes to marry is unconstitutional; they said that under the Constitution persons of the same sex should also be allowed to marry. In their opinion this was a situation in which a rule that was necessary in order to implement a constitutional requirement did not exist.
II – Delimitation of the scope of the appeal
5. The appellants originally made their appeal under the terms of Article 70(1)(b), (c) and (f) of the Law governing the Constitutional Court (LTC). These provisions permit appeals to a chamber of the Constitutional Court, against lower court decisions: “(b) That apply a rule whose unconstitutionality has been alleged during the case”; “(c) That refuse to apply a rule set out in a legislative act, on the grounds that it is illegal because it is in breach of a law with superior legal force “; and “(f) That apply a rule whose illegality on any of the grounds referred to in (c), (d) or (e) has been alleged during the case”. However, in the petition they finally submitted in response to the questions raised by the Public Prosecutors’ Office, the appellants withdrew the parts of the appeal they had lodged under the terms of subparagraphs (c) and (f) of Article 70(1) of the LTC, and reduced the scope of their request to subparagraph (b) of that legal precept. As such, they restricted themselves to challenging the allegedly unconstitutional norm which the court against whose decision – i.e. the Lisbon Court of Appeal and its ruling – they are appealing applied as its ratio decidendi and which, in their opinion, is "only" that contained in Articles 1577 and 1628(e) of the Civil Code.
Notwithstanding this position, the instrumental nature of the appeal format that entails asking for a concrete review of constitutionality means that one must accept – as this Court always has – that in fact the object of the appeal must be limited to the rule which the court against whose decision the appeal has been lodged effectively applied as the legal grounds for its decision; the object cannot encompass norms that are included in the mere argumentation accompanying the process of weighing up the jurisdictional reasoning contained in the decision in question. The truth is that in its ruling, the Lisbon Court of Appeal is entirely clear as to the norm it definitively applied to the case, which is to say the norm contained in Article 1577 of the Civil Code. Invocation of the norm contained in Article 1628(e) of that Code represents an additional argument in favour of the solution which the Court of Appeal applied, and could never be applied to the case in question because it is obvious that what is at stake is not a marriage that has already been entered into by two persons of the same sex.
In conclusion, the scope of the present appeal is defined by Article 70(1)(b) of the LTC, and its object is the norm contained in Article 1577 of the Civil Code, which states that marriage can only be entered into by persons of different sexes.
III – Grounds for decision
6. The norm that has been challenged reads as follows:
(Notion of marriage)
Marriage is the contract entered into by two persons of different sexes who wish to form a family by fully sharing their lives, under the terms of the provisions of the present Code.”
In its decision the Lisbon Court of Appeal felt that this norm does not conflict with the provisions of Article 13 of the Constitution, quite apart from anything else inasmuch as the principle enshrined in Article 13 does not prevent the ordinary legislator from making distinctions, but only from engaging in arbitrary discrimination. The decision also says that “the appellants are alleging that there is a breach of the provisions of Article 36(1) of the Constitution, given that – in summary – the fact that they cannot get married means that they are being prevented from enjoying the right to form a family”. However, according to the Court of Appeal, “there is a fundamental misunderstanding here: Article 36(1) of the CRP enshrines two rights (not just one), which consist of: the right to form a family, and the right to enter into marriage (and those two rights are not to be confused with one another)”. What is more, “where marriage is concerned, although the various paragraphs of Article 36 of the CRP do not constitute closed norms, the Constitution charges the ordinary legislator with the task of regulating the requisites for and effects of marriage, and even the way in which it is entered into”. While still on the subject of Article 36, the Court of Appeal emphasises that “by addressing marriage separately (...) the constitutional legislator implicitly showed that it was not unaware of the structural coordinates that delimit marriage in the Portuguese legal order. And – we say it again – the essential nucleus includes entry into marriage by persons of different sexes”. Finally, the Court of Appeal said that the norm contained in Article 67 of the Constitution “has more to do with the family itself, than with its formation”.
Besides considering the challenged norms in the light of the aforementioned constitutional norms and principles, in the decision against which the present appeal has been lodged the Court of Appeal developed another line of argument. It said that “notwithstanding the delimitation of the notion of marriage in the Portuguese legal order, by relegating the regulation of the requisites for and effects of marriage to the ordinary legislator, the constitutional legislator did not close the door on any changes which the ordinary legislator might think it useful to make as a result of the demands that might arise out of the transformations of Portuguese society”. According to the Court of Appeal, “it is one thing to breach the principle – something that did not happen – but another thing altogether for the ordinary legislators not to take the path that was left open for them”. This is the context in which the decision refers to the European Parliament’s “Resolution on equal rights for homosexuals and lesbians in the European Community” (A3-0028/94 of 8 February 1994). On the same subject the Court of Appeal “reiterates that the question is not just seen from the perspective of the existence of marriage (which can be one way of looking at it); there are other ways of looking at the issue (contrary to that which the appellants would like us to believe)”. In this respect the Court of Appeal goes on to point out that “contrary to the appellants’ arguments, the solutions that have been adopted in the various European legal orders do not solely entail admission of the possibility the persons of the same sex can marry one another, but also (and essentially) registered unions (that are not marriages)”.
The appellants’ arguments that the challenged norm is unconstitutional are extensive, and include the main steps in the reasoning set out in the expert opinions they attached to the case file. In an attempt to glean the most important elements from those arguments, it is possible to say that the appellants put forward the following categories of reasons as to why the challenged norm is unconstitutional.
The appellants hope that the present appeal will “put an end to the persistent and discriminatory statement that, because they are homosexual, (...) they possess a legal capacity which is less than that pertaining to other citizens”. To this end they begin by arguing that “while we know the law reserves this right (to enter into marriage under fully equal conditions) to persons of different sexes, this knowledge cannot guide the path we take as we analyse the legal framework in question; in other words, the Constitution must be read without looking through the ‘spectacles’ of the current law, failing which we would be inverting the hierarchy of sources of law. What matters is to determine what the Constitution requires today, regardless of what the ordinary law may say, and from there draw the appropriate consequences”. This means that there are no grounds for seeking to exclude the unconstitutionality of the challenged norms on the basis of the institutional guarantee. To do so would lead to “a vicious normative circle, to arbitrarily attach more importance to the past, in a way that is alien to the Constitution, to a failure to take subjective positions into account and to a failure to consider the ultimate purposes of the legal institutions in question, as well as to a vacuum in terms of arguments”. The “institutional guarantee promotes forms of social immobility in terms of both privileges enjoyed by minorities and, in the case of marriage, discrimination against minorities, in that it prevents them from gaining access to an asset”.
In the appellants’ opinion “the Constitution evolved in a specific direction which involved protecting rights that might be affected as a result of their holder’s sexual orientation”. This happens in Article 13(2) and Article 26, where “the dignity of the human person takes concrete form in the shape of an imperative requirement to treat people equally, discrimination based on sexual orientation is expressly prohibited and, finally, we have the right that everyone possesses – to enter into marriage, in a way that reflects the latter’s universality”.
Civil marriage, “which is only valid under the terms that are recognised by the law and the Constitution, attributes a symbolic status that goes far beyond the legal duties which are expressly set out in the Civil Code and other legislation”. The fact is that “we cannot see any constitutionally acceptable reason for denying a same-sex couple access to this ‘legal asset’ ”.
To begin with, under the regime established by the law it is not possible to attribute any procreational purpose to marriage. There is thus no maximum age limit for marrying, there is nothing to prevent the marriage of infertile persons, infertility or the use of contraceptives are not grounds for divorce, and marriage can be entered into in articulo mortis. On the contrary, “with the progressive (historical) hegemony of the concept of Romantic Love, the primary reason for marriage came to be sentiment, not to mention the appearance of other variables and the shattering of the binomial marriage/children”.
As such, “access by a couple composed of persons of the same sex to just a de facto union – as opposed to heterosexual couples, who are free to choose between a de facto union and marriage, involves a distinction for which the Constitution provides no grounds”.
Constitutional recognition of same-sex marriage “would not result in any damage to anyone, and there would be no consequences for heterosexual couples, for whom that right, which they are already recognised to possess, would be untouched”.
The “idea that homosexual marriage would ‘do away with’ or ‘disfigure’ the essential core of marriage cannot be detached from a protection of general feelings of sexual morality and reveals a negative value judgement in relation to homosexuality, including the idea that heterosexuality represents the more ‘normal’ situation”, in a way that is similar to “what happened with the old version of Article 175 of the Penal Code”.
Refusing marriage between persons of the same sex entails a “homophobic phenomenon that is unacceptable in the light of the Constitution”, in that it denies homosexuals “the possibility of mutually ensuring each other inheritance rights and rights to subsistence pensions, shared assets, the attachment of legal value to commitments consubstantiated in conjugal duties etc., etc.”
Denying marriage to persons of the same sex means denying that “their families fully possess the status of fundamental elements of society”.
When it enshrined marriage, the legal order limited itself to bringing about a set of legal effects, and the Law does not include “the social meaning of a supreme existential commitment between two persons”. In the vision of marriage, the idea of a contract, “which is favourable to the autonomy and preponderance of the individual”, is opposed by the institution, “which tends to affirm supra-individual interests (values)”.
Finally, “given the reference to sexual orientation in Article 13(2) of the CRP, every legal distinction that is formally or substantially dependent on sexual orientation is presumed to be unconstitutional”, so “the burden to prove that its argument is correct must be borne by the thesis that homosexual marriage is unconstitutional”.
In its response the Public Prosecutors’ Office argued that the challenged norms are not unconstitutional. It began by saying that the “parameter for gauging constitutionality must be the norms contained in Articles 13 – as the Article which enshrines the constitutional principle of equality – and 36 – as the Article which establishes the institutional guarantee of the ability to “enter into marriage on terms of full equality”. It does not appear to us to be possible to invoke the guarantee of the ability to form and protect a family, which results from the conjugation of this precept and Article 67, given that – as the decision against which the present appeal was lodged in fact notes – nothing prevented the appellants from being able to form a family, even without the ‘legal’ entry into a civil marriage”.
On the subject of the principle of equality, the Public Prosecutors’ Office argued that “the current legal regime certainly cannot be described as absolutely lacking in material support, and yet as reflecting the imposition of a purely arbitrary legislative solution”. But even if one were to believe otherwise, upholding the appellants’ arguments would imply that “this Constitutional Court ought to hand down an ‘additive decision’ in which it jurisprudentially expanded the legal institution of marriage itself, in the form that, in terms of its essential physiognomy, is derived from the normative provisions of the civil law”.
However, this type of decision would be precluded, first of all, “in the domains in which the principle of ‘typicity’ or legality is applicable”; and secondly, nor would this type of additive decision be possible “in cases in which the exact definition of the legal regime that would result from the expansion of the possible meaning embodied by the norm in question was not automatically derived from a constitutional norm or principle, and would inevitably depend on the exercise of a margin for ‘legislative discretionality’ – and respect for the Constitution can be fully ensured by the creation of differentiated normative regimes”. According to the Public Prosecutors’ Office, both limits apply in the case before us.
7. If we are to correctly understand the question of unconstitutionality that is raised in the present case, we must begin by clearly noting that the same subject has already been considered in other jurisdictions, with varying results. We must begin by making a special mention of the jurisdictional decisions that have been taken with regard to this subject in Canada, South Africa and the United States.
7.1. In the United States of America – a country in which it is the individual states and not the federal government that define the requisites applicable to marriage – as early as 1993 the Supreme Court of Hawaii considered that the State Constitution only allowed marriage to be restricted to heterosexual couples if the State was able to show the existence of significant interests that would justify the exclusion of homosexuals. However, before the Hawaii Supreme Court had another opportunity to pronounce itself on the subject, the State Constitution was revised in such a way as to ensure that marriage was defined as a union between a man and a woman (see Baehr v. Lewin, 5 May 1993, which, like all the other judicial decisions and legislative acts quoted below, is available on various Internet websites). Subsequently, in 1999 the Supreme Court of Vermont issued a decision (Baker v. State, 20 December 1999) in which it considered that the principle of equality that was enshrined in its State Constitution prohibited excluding homosexuals from the benefits and protections associated with matrimony. It also held that the existing legal provisions on marriage should remain in place for a reasonable period of time, in such a way as to allow the legislative authorities to adopt an appropriate regime. This was followed by passage of a legislative act creating a civil union that provides homosexuals with the same protection that marriage affords to opposite-sex couples. Under the terms of §1202(2) of Act 91 of 2000, An Act Relating to Civil Unions, one of the requisites for a valid civil union is that the participants “be of the same sex and therefore excluded from the marriage laws of this State”.
On a different level we have the decision which the Supreme Judicial Court of the State of Massachusetts took in 2003 (Goodridge v. Department of Public Health, 440 Mass. 309), in which it held that the guarantees of equality and liberty protected by the State Constitution made it unconstitutional for marriage to only be between a man and a woman, because there is no “rational basis” for maintaining this rule. The Justices divided four to three, but the majority said: “Marriage is a vital social institution. The exclusive commitment of two individuals to each other nurtures love and mutual support; it brings stability to our society. For those who choose to marry, and for their children, marriage provides an abundance of legal, financial, and social benefits. In return it imposes weighty legal, financial, and social obligations. The question before us is whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry. We conclude that it may not. The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens. In reaching our conclusion we have given full deference to the arguments made by the Commonwealth. But it has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples”.
The Massachusetts Supreme Judicial Court analysed and sought to refute three possible legislative rationales for excluding same-sex couples from marriage: a) marriage is the ideal setting for procreation; b) marriage between persons of different sexes is the ideal setting in which to raise children; and c) marriage between persons of different sexes preserves scarce State and private financial resources. On the first argument the Court felt that the effects of marriage do not presuppose procreation, given that fertility is not a condition for getting married, nor, in its own right, grounds for divorce. So “it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage”. The argument that marriage is procreation “singles out the one unbridgeable difference between same-sex and opposite-sex couples, and transforms that difference into the essence of legal marriage”. In reality this would be the same as accepting that “destructive stereotype that same-sex relationships are inherently unstable and inferior to opposite-sex relationships and are not worthy of respect”. With regard to the second argument, the Court said that there is no evidence that “forbidding marriage to people of the same sex will increase the number of couples choosing to enter into opposite-sex marriages in order to have and raise children”. The third argument says that persons of the same sex who want to get married are supposedly more independent from a financial point of view and thus have less need for public marital benefits. The Court said that this way of looking at things simply ignores the fact that many people who want to enter into same-sex marriages have dependents, under the same conditions as persons who are currently married.
After considering the arguments before it, the Massachusetts Supreme Judicial Court said that it was not possible to strike down the existing laws governing matrimony, because this would be “wholly inconsistent with the Legislature's deep commitment to fostering stable families and would dismantle a vital organizing principle of our society” Instead, the Court cited the example of the Court of Appeal for Ontario (in Halpern v. Toronto, 2003) – the most senior court in that Canadian Province – when it chose to clarify the meaning of marriage under the common law. The Supreme Judicial Court said that this was a path that was “entirely consonant with established principles of jurisprudence empowering a court to refine a common-law principle in light of evolving constitutional standards”. As such, civil marriage was taken to mean “the voluntary union of two persons as spouses, to the exclusion of all others. This reformulation redresses the plaintiffs' constitutional injury and furthers the aim of marriage to promote stable, exclusive relationships. It advances the two legitimate State interests the department (of Public Health) has identified: providing a stable setting for child rearing and conserving State resources. It leaves intact the Legislature's broad discretion to regulate marriage”.
Justice Cordy dissented from the decision. In doing so he argued for the rational basis for the laws governing marriage, saying that: “Admittedly, heterosexual intercourse, procreation, and child care are not necessarily conjoined (particularly in the modern age of widespread effective contraception and supportive social welfare programs), but an orderly society requires some mechanism for coping with the fact that sexual intercourse commonly results in pregnancy and childbirth. The institution of marriage is that mechanism”.
Shortly afterwards, it was the turn of the Supreme Court of the State of New Jersey to pronounce itself on this subject, in Lewis v. Harris, 14 June 2005 – a decision in which the Justices were equally at odds, with a two-to-one split. The Court said that the essential premise of the majority opinion in Goodridge, according to which marriage is the exclusive commitment of two individuals, one to the other, is a normative judgement that is in conflict with the traditional vision – still prevalent in religious and social terms – of marriage as the union between a man and a woman that plays a vital role in the propagation of the species and is the ideal setting in which to raise children. So Goodridge “does not establish a right of access that is equal to marriage, without looking at race or any other invidious discriminatory factor, but instead significantly changes the nature of the institution. In reality, the majority opinion itself recognises that ‘our decision today marks a significant change in the definition of marriage as it has been inherited from the common law, and understood by many societies for centuries’.” (Partially retranslated from a Portuguese translation.) The Court concluded that only the legislator could authorise marriage between persons of the same sex. Along the same lines, and without any attempt to be exhaustive, we can also refer to the decisions of the Court of Appeal of the State of Indiana in Morrison v. Sadler (20 January 2005), and of the Supreme Court of the State of Washington in Andersen v. King (July 2006) – again cases in which the courts were divided by strongly dissenting opinions.
More recently, in its consolidated decision In re Marriage (15 May 2008) the Supreme Court of California – once again deeply divided, this time with a majority of four to three – also ruled on the constitutional right of same-sex couples to marry (the second such decision in the USA, following the Goodridge case). In a State in which homosexuals already had access to essentially the same rights as those which marriage provides to heterosexual couples, via the possibility of entering into a ‘domestic partnership’ agreement between persons of the same sex, the question which the California Supreme Court was called on to decide was whether “under these circumstances the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution”. In order to answer this question, on the one hand the Court based itself on “a fundamental and dramatic transformation in this state’s understanding and legal treatment of gay individuals and gay couples. California has repudiated past practices and policies that were based on a once common viewpoint that denigrated the general character and morals of gay individuals, and at one time even characterized homosexuality as a mental illness rather than as simply one of the numerous variables of our common and diverse humanity”. The Court said that on the contrary, it is now recognised that gay individuals have “the same legal rights and the same respect and dignity afforded all other individuals and are protected from discrimination on the basis of their sexual orientation and, more specifically … that gay individuals are fully capable of entering into the kind of loving and enduring committed relationships that may serve as the foundation of a family and of responsibly caring for and raising children”.
At the same time the Court felt that the link which is sometimes postulated between marriage and procreation is erroneous. Although “the legal institution of civil marriage may well have originated in large part to promote a stable relationship for the procreation and raising of children (...), and although the right to marry and to procreate often are treated as closely related aspects of the privacy and liberty interests protected by the state and federal Constitutions (...) the constitutional right to marry never has been viewed as the sole preserve
of individuals who are physically capable of having children”.
The Court concluded that the constitutional right to marry must be attributed under equal circumstances to both homosexual and heterosexual couples. It said that this redefinition of marriage would not violate the doctrine of the separation of powers, inasmuch as it would not be determined by a question of public policies, or by the issue of the extent to which such a change would better serve the public interest, but just by the need to respect the constraints which the Constitution places on legislative measures. Finally, given that the issues included a breach of the principle of equality, the Court reflected on whether the path that should be taken ought to consist of eliminating the violation of the Constitution by extending the right provided for in the legislative act to the category of persons that had illegitimately been excluded from it, or, on the contrary, doing away with the right for all its possible beneficiaries. In the case before it, the Court felt that broadening the term ‘marriage’ to encompass same-sex couples was clearly more consistent with the legislator’s probable intention than doing away with that designation and replacing it with another one, which would uniformly apply to all couples.
The dissenting opinions that accompanied this decision did not question the fact that attributing different rights under official unions of persons of the same sex on the one hand and under marriages of persons of different sexes on the other would be in breach of the constitutional principle of equality. The dissenting voices only argued that simply giving a different name to each of the two realities would also violate the principle, given the persistent definition of marriage as a union between persons of different sexes. Justice Baxter posed the question in the following terms: “Even though California’s progressive laws, recently adopted through the democratic process, have pioneered the rights of same-sex partners to enter legal unions with all the substantive benefits of opposite-sex legal unions, do those laws nonetheless violate the California Constitution because at present, in deference to long and universal tradition, by a convincing popular vote, and in accord with express national policy, they reserve the label “marriage” for opposite-sex legal unions? No.”
We should note that on 4 November 2008 the people of California expressly approved Proposition 8, which resulted in an amendment to the Constitution of the State of California designed to overturn the Supreme Court decision.
It is also important to mention the decision which the Supreme Court of the State of Connecticut handed down on 10 October 2008 and in which the Court recognised the right of two persons of the same sex to marry, despite the fact that the State already recognised same-sex civil unions with substantially the same rights as those enjoyed by the partners in civil marriages, and despite the existence of a current legislative process designed to make same-sex marriages legal. In Elizabeth Kerrigan et al. v. Commissioner of Public Health et al. (available on various websites), in which the Court issued its decision by a majority of four to three, Justice Palmer for the majority concluded that “in light of the history of pernicious discrimination faced by gay men and lesbians, and because the institution of marriage carries with it a status and significance that the newly created classification of civil unions does not embody, the segregation of heterosexual and homosexual couples into separate institutions constitutes a cognizable harm”. In the majority opinion, “our conventional understanding of marriage must yield to a more contemporary appreciation of the rights entitled to constitutional protection. Interpreting our state constitutional provisions in accordance with firmly established equal protection principles leads inevitably to the conclusion that gay persons are entitled to marry the otherwise qualified same sex partner of their choice. To decide otherwise would require us to apply one set of constitutional principles to gay persons and another to all others. The guarantee of equal protection under the law, and our obligation to uphold that command, forbids us from doing so. In accordance with these state constitutional requirements, same sex couples cannot be denied the freedom to marry.”
Justice Zarella dissenting said that the majority understanding according to which the public authorities had not managed to formulate sufficient justification for restricting marriage to persons of different sexes “is based primarily on the majority’s unsupported assumptions that the essence of marriage is a loving, committed relationship between two adults and that the sole reason that marriage has been limited to one man and one woman is society’s moral disapproval of or irrational animus toward gay persons. Indeed, the majority fails, during the entire course of its 129 page opinion, even to identify, much less to discuss, the actual purpose of the marriage laws, even though this is the first, critical step in any equal protection analysis”. According to Justice Zarella, “The ancient definition of marriage as the union of one man and one woman has its basis in biology, not bigotry. If the state no longer has an interest in the regulation of procreation, then that is a decision for the legislature or the people of the state and not this court”. He went on to say that “the United States Supreme Court and many of our sister state courts have recognized that traditional marriage serves two separate but closely related functions, both deriving from the capacity of a couple comprised of one man and one woman to propagate children. First, in order to advance society’s interest in the survival of the human race, the institution of marriage honors and privileges the only sexual relationship – that between one man and one woman – that can result in the birth of a child. Second, in order to protect the offspring of that relationship and to ensure that society is not unduly burdened by irresponsible procreation, marriage imposes obligations on the couple to care for each other and for any resulting children”. So it was “obvious that a couple that is incapable of engaging in the type of sexual conduct that can result in children is not similarly situated to a couple that is capable of engaging in such conduct with respect to legislation that is intended to privilege and regulate that conduct”. Thus, Justice Zarella felt that while the majority believed that the only reason which had been given for limiting marriage to opposite-sex couples was ‘because that’s just the way it is’, it was also possible to think that “the majority simply assumes at the outset of its analysis the answer to the central question in the case and then declines even to address the only argument – that marriage was intended to privilege and regulate sexual conduct that may result in the birth of a child – that any court ever has found to be persuasive in determining that that answer is incorrect”. At the same time, with regard to the alleged inequality between providing for marriage between opposite-sex couples and civil union between same-sex couples, the dissenting Justice said that it is reasonable to think that “limiting marriage to a man and a woman accomplishes vital social goods, while the institution of civil union promotes the legitimate interests of those who enter into it”. This is the context in which it is possible to see that the exclusion of same-sex marriages has nothing to do with the prohibition of inter-racial marriages, in that the latter “intruded on the fundamental right to procreate, and the constitutional prohibition against this intrusion recognizes and enhances the special status of procreative conduct. Redefining marriage to include same sex couples has no such purpose or effect”.
Lastly, we should mention the decision which the Supreme Court of the State of Iowa handed down on 3 April 2009. In this case the Court unanimously held that a legislative provision which defined marriage as a union of persons of different sexes was unconstitutional, because it was in violation of the principle of equality. In order to reach that conclusion the Court turned to an intermediate test that is used to review whether a legislative measure is constitutional in the light of the principle of equality. This test, which is usually known as ‘heightened scrutiny’ and is applied to legislative provisions that establish differences between men and women, is based on the idea that such legislative classifications do not provide sufficient grounds for differentiated treatment. As such, the public authorities must show that the relevant legislative provisions are substantially related to a legitimate interest of the State. In its decision the Iowa Supreme Court analysed the various interests and objectives that are called on to justify the exclusion of the extension of civil marriage to persons of the same sex – i.e. that doing so maintains traditional marriage, promotes the ideal setting in which to raise children, promotes procreation, promotes the stability of relationships between opposite-sex couples, and preserves resources by not increasing the financial expenses which the State would incur as a result of a rise in the number of people who could get married – and considered that none of these cases substantially warranted that exclusion.
Particularly where the objective of procreation is concerned, although the Iowa Court admitted that opposite-sex marriage does promote this, in its decision it said that the real question was whether excluding homosexuals from the institution of civil marriage has the effect of increasing procreation. In other words, if procreation is the true objective of civil marriage, then differentiating between homosexuals and heterosexuals with regard to marriage must be an effective way of pursuing that objective. Given that homosexual persons are capable of procreating, the only way to prove that excluding them from civil marriage would lead to an increase in procreation would be to demonstrate that that exclusion could have the effect of “turning” homosexuals into heterosexuals with a view to procreation within the scope of the current traditional institution of civil marriage. In this respect, even if this were to be true, the link between excluding homosexuals from marriage and an increase in procreation is too tenuous to pass the ‘heightened scrutiny’ test.
Also in 2009, the States of Vermont, New Hampshire and Maine passed legislation extending civil marriage to unions between two persons of the same sex.
7.2 In Canada the Civil Marriage Act, which received Royal Assent on 20 July 2005, reformulated the definition of civil marriage, making it “the lawful union of two persons to the exclusion of all others”. This concluded a judicial movement based on Section 15 of the 1982 Charter of Rights and Freedoms, Section 1 of which reads as follows: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability”. As early as 1995, in Egan v. Canada, the Supreme Court of Canada held that sexual orientation constituted grounds that were analogous to those expressly listed in Section 15 of the Charter.
Subsequently, on 1 May 2003, in Barbeau v. British Columbia the Court of Appeal for British Columbia concluded that the “the redefinition of marriage to include same-sex couples. In my view, this is the only road to true equality for same-sex couples. Any other form of recognition of same-sex relationships, including the parallel institution of Registered Domestic Partnerships, falls short of true equality. This Court should not be asked to grant a remedy which makes same-sex couples ‘almost equal’, or to leave it to governments to choose amongst less-than-equal solutions”. Shortly afterwards, on 10 June 2003, the Court of Appeal for Ontario reached the same conclusion in Halpern v. Canada. The difference was that rather than suspending its decision for a given period of time in order to allow the legislator to act in such a way as to extend marriage to same-sex couples, the Ontario Court directly reformulated the definition of marriage and ordered the competent administrative officials to issue marriage licences to the same-sex couples to whom they had been denied in the case in question.
Finally, the national government asked the Supreme Court of Canada to take a position on the question of extending civil marriage to same-sex couples, given that a number of provincial courts, including the ones mentioned above, had already issued decisions on the matter, but the Supreme Court had not yet pronounced itself. In the decision it gave on 9 December 2004 in Reference re Same-Sex Marriage, the Canadian Supreme Court considered that extending the right to civil marriage to persons of the same sex was not only consistent with Section 15 of the Charter of Rights and Freedoms, but was a direct result thereof. Referring to the 1866 case Hyde v. Hyde, in which it was said that marriage, “as understood in Christendom … may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others”, the Supreme Court said: “The reference to “Christendom” is telling. Hyde spoke to a society of shared social values where marriage and religion were thought to be inseparable. This is no longer the case. Canada is a pluralistic society. Marriage, from the perspective of the state, is a civil institution. The ‘frozen concepts’ reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life”.
7.3. Between 1998 and 2003, the Constitutional Court of South Africa used the constitutional principles of equality and non-discrimination, which include an express reference to sexual orientation, in order to eliminate or change various norms which, in the Court’s opinion, discriminated against homosexuals and same-sex couples. On 1 December 2005, in Minister of Home Affairs v. Fourie, the Court pronounced itself on the question of same-sex marriage. It said that excluding persons of the same sex from the benefits and responsibilities of marriage is not “a small and tangential inconvenience resulting from a few surviving relics of societal prejudice destined to evaporate like the morning dew. It represents a harsh if oblique statement by the law that same-sex couples are outsiders, and that their need for affirmation and protection of their intimate relations as human beings is somehow less than that of heterosexual couples. It reinforces the wounding notion that they are to be treated as biological oddities, as failed or lapsed human beings who do not fit into normal society, and, as such, do not qualify for the full moral concern and respect that our Constitution seeks to secure for everyone. It signifies that their capacity for love, commitment and accepting responsibility is by definition less worthy of regard than that of heterosexual couples”.
The South African Constitutional Court also addressed the proposition that, whatever the recognition due to persons of the same sex who want to live together, that recognition must leave traditional marriage intact. It identified the following arguments for this belief: the argument of procreation; the need to respect each person’s religious beliefs; the recognition which international law accords to heterosexual marriage; and the need to have recourse to diverse family law systems, which is contained in section 15 of the South African Constitution. With regard to the argument that procreational potential characterises marriage, the Court said that although this may be persuasive within the context of a particular religious vision, it is not a definitional characteristic of conjugal relations from a legal and constitutional point of view. The Court went on to say: “To hold otherwise would be deeply demeaning to couples (whether married or not) who, for whatever reason, are incapable of procreating when they commence such relationship or become so at any time thereafter. It is likewise demeaning to couples who commence such a relationship at an age when they no longer have the desire for sexual relations or the capacity to conceive. It is demeaning to adoptive parents to suggest that their family is any less a family and any less entitled to respect and concern than a family with procreated children. It is even demeaning of a couple who voluntarily decide not to have children or sexual relations with one another; this being a decision entirely within their protected sphere of freedom and privacy”.
Another proposition was that radically changing an institution which possesses a centuries-old meaning for many religions would constitute a breach of religious freedom. The Court simply said that in this respect it is one thing “to acknowledge the important role that religion plays in our public life. It is quite another to use religious doctrine as a source for interpreting the Constitution”. Recognition by the state “of the right of same-sex couples to enjoy the same status, entitlements and responsibilities as marriage law accords to heterosexual couples is in no way inconsistent with the rights of religious organisations to continue to refuse to celebrate same-sex marriages”.
Another line of argument is that international law only recognises and protects heterosexual marriage. Article 16(1) of the 1948 Universal Declaration of Human Rights states that: “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family”. In the view of the South African Constitutional Court: “The reference to “men and women” is descriptive of an assumed reality, rather than prescriptive of a normative structure for all time”. Similarly: “The statement in Article 16(3) of the UDHR that the family is the natural and fundamental group unit in society, entitled to protection by the state, has in itself no inherently definitional implications”.
The proposition says that the recognition of the diversity of systems applicable to personal law and to the family “under any tradition” derived from Section 15 of the South African Constitution implies that it is the legislative and not the judicial authorities who are responsible for creating a regime that is appropriate to the needs of same-sex couples, and that the creation of such a regime ought not to conflict with the institution of marriage. The Court felt that while this norm is not injunctive, it “certainly does not project itself as the one and only legal portal to the recognition of same-sex unions”, quite apart from the fact that it is difficult to slot same-sex unions into the category of a system of family law “under any tradition”.
The South African Constitutional Court then considered the question of whether, under the terms of Section 36 of the South African Constitution (which performs essentially the same function as Article 18 of the Portuguese Constitution), there was any justification for affecting same-sex couples’ rights to equality and dignity. In this respect the Court said it would be necessary to consider two justifications: that the inclusion of same-sex couples would undermine the foundations of the institution of marriage; and that such an inclusion would intrude on and offend strong religious sensibilities on the part of certain sections of the public. On the first justification, the Court took up a line of argument that had already been pursued in Goodridge: “Granting access to same-sex couples would in no way attenuate the capacity of heterosexual couples to marry in the form they wished and according to the tenets of their religion”. On the second, it said that religious beliefs “cannot through the medium of state-law be imposed upon the whole of society and in a way that denies the fundamental rights of those negatively affected”. As such, the Court concluded that excluding same-sex couples from the status, rights and responsibilities which are attributed to heterosexual couples through marriage is an unjustified violation of the principles of equality and human dignity.
Having thus said that the common-law definition of marriage was in violation of the South African Constitution, the Court turned to the question of whether it should itself develop the common law in such a way as to overcome that breach. It considered three arguments against doing so: that the public must be given time to involve itself in a subject of such great importance and public interest; that the Court is not competent to restructure the institution of marriage in such a radical way; and that only Parliament has the authority needed to reformulate marriage. It admitted that there were a variety of alternatives which the legislator might consider, ranging from simply replacing the words ‘husband’ and ‘wife’ with the words ‘spouses’ or ‘persons’ in the text of the current law, to making provision for different matrimonial acts, together with a marriage act of general application, for different groups such as couples in customary marriages, Islamic marriages, Hindu marriages and also opposite-sex specific marriages. In the view of the Court: “Given the great public significance of the matter, the deep sensitivities involved and the importance of establishing a firmly-anchored foundation for the achievement of equality in this area, it is appropriate that the legislature be given an opportunity to map out what it considers to be the best way forward”. However, the Court excluded any remedy that “on the face of it would provide equal protection, but would do so in a manner that in its context and application would be calculated to reproduce new forms of marginalisation. Historically the concept of ‘separate but equal’ served as a threadbare cloak for covering distaste for or repudiation by those in power of the group subjected to segregation”. Against this background the Court suspended a declaration of the invalidity of the common-law definition of marriage for one year, so as to allow Parliament to cure the defect. The Court ordered that if the Parliament did nothing, at the end of that year the term ‘spouse’ would be added to the marriage wording in the Marriage Act. The Court said that this solution would “have the advantage of being simple and direct. It involves minimal textual alteration. The values of the Constitution would be upheld. The existing institutional mechanisms for the celebration of marriage would remain the same. Budgetary implications would be minimal. The long-standing policy of the law to protect and enhance family life would be sustained and extended. Negative stereotypes would be undermined. Religious institutions would remain undisturbed in their ability to perform marriage ceremonies according to their own tenets, and thus if they wished, to celebrate heterosexual marriages only. The principle of reasonable accommodation could be applied by the state to ensure that civil marriage officers who had sincere religious objections to officiating at same-sex marriages would not themselves be obliged to do so if this resulted in a violation of their conscience. If Parliament wished to refine or replace the remedy with another legal arrangement that met constitutional standards, it could still have the last word”.
In 2006 the South African Parliament passed the Civil Union Act, and thenceforth there were thus three legal marriage regimes: the 1961 Marriage Act, the 1998 Customary Marriage Act, which addressed the recognition of marriages entered into in accordance with the customs of indigenous tribes, and the aforementioned Civil Union Act. South Africans can now choose to marry under any of these regimes, albeit they can only be married in accordance with one of them at any one time. Two persons of the same sex can only marry one another under the Civil Union Act, but they can choose whether their union is called a civil union or a marriage. Whatever that choice, these unions have the same consequences as marriages entered into under the Marriage Act, mutatis mutandis.
8. In Europe a variety of paths have been followed in relation to the subject that is of interest to us here. On our continent it has been the legislator that has intervened to recognise same-sex unions. In some countries this intervention has taken the form of an actual redefinition of marriage in such a way as to encompass unions between persons of the same sex – examples include Holland in 2001, Belgium in 2003, Spain in 2005, and more recently Norway and Sweden. In other cases the legislative intervention has involved enshrining same-sex civil unions or registered life partnerships in the law, with recognition of many of the rights and duties applicable to marriage. The first country to include a civil union between persons of the same sex in its law was Denmark, in 1989. There followed Norway in 1993, Sweden in 1994, Iceland in 1996, Germany in 2001, Finland in 2001, and the United Kingdom in 2004 (see “Casamento e Outras Formas de Vida em Comum entre Pessoas do mesmo Sexo”, a report prepared by the Legislative Information Division of the Assembly of the Republic in May 2007 and published in Julgar, no. 4, 2008, pp. 223 et seq.).
Article 12 of the European Convention on Human Rights (4 April 1950) states that: “Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right”. On the subject of equality, Article 14 of the Convention says: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”. Article 9 of the Charter of Fundamental Rights of the European Union (7 December 2000) in turn says: “The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights”. In addition, Article 21(1) forbids all “discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation”.
The European Court of Human Rights has taken several opportunities to pronounce itself on marriage. For example, in Rees v. the United Kingdom (10 October 1986) the Court said that “the right to marry guaranteed by Article 12 (of the European Convention on Human Rights) refers to the traditional marriage between persons of opposite biological sex. This appears also from the wording of the Article which makes it clear that Article 12 is mainly concerned to protect marriage as the basis of the family” (see §49). This view was later confirmed in both Cossey v. the United Kingdom (27 September 1990, see §43), and Sheffield and Horsham v. the United Kingdom (30 July 1998, see §60).
Following the decisions in Rees, Cossey and Sheffield and Horsham, this jurisprudence was the object of a distinguo with regard to transsexuality in Christine Goodwin v. the United Kingdom (11 July 2002). In the latter decision the European Court of Human Rights abandoned the earlier reference to “opposite biological sex” in order to define marriage, in the following terms: “Reviewing the situation in 2002, the Court observes that Article 12 secures the fundamental right of a man and woman to marry and to found a family. The second aspect is not however a condition of the first and the inability of any couple to conceive or parent a child cannot be regarded as per se removing their right to enjoy the first limb of this provision” (see §98). The Court also said that: “There have been major social changes in the institution of marriage since the adoption of the Convention as well as dramatic changes brought about by developments in medicine and science in the field of transsexuality. (…) There are other important factors – the acceptance of the condition of gender identity disorder by the medical professions and health authorities within Contracting States, the provision of treatment including surgery to assimilate the individual as closely as possible to the gender in which they perceive that they properly belong and the assumption by the transsexual of the social role of the assigned gender. The Court would also note that Article 9 of the recently adopted Charter of Fundamental Rights of the European Union departs, no doubt deliberately, from the wording of Article 12 of the Convention in removing the reference to men and women” (see §100).
On the other hand, in the decision to deny the applicant’s request which it handed down in Mata Estevez v. Spain on 10 May 2001, the Court said that “according to the established case law of the Convention Institutions, long term homosexual relationships between two men do not fall within the scope of the right to respect for family life protected by Article 8 of the Convention (see no. 9369/81, dec. 3.5.1983, DR 32, p. 220; no. 11716/85, dec. 14.5.1986, DR 47, p. 274). The Court considers that, despite the growing tendency in a number of European States toward the legal and judicial recognition of stable de facto partnerships between homosexuals, this is, given the existence of little common ground between the Contracting States, an area in which they still enjoy a wide margin of appreciation (see, mutatis mutandis, Cossey v. the United Kingdom, 27 September 1990, series no. 184, p. 16, §40; and, a contrario, Smyth and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, §104, ECHR 1999-VI). Accordingly, the applicant's relationship with his late partner does not fall within Article 8 in so far as that provision protects the right to respect for family life.” In Karner v. Austria (24 July 2003) the Court was of the view that: “The aim of protecting the family in the traditional sense is rather abstract and a broad variety of concrete measures may be used to implement it. In cases in which the margin of appreciation afforded to States is narrow, as is the position where there is a difference in treatment based on sex or sexual orientation, the principle of proportionality does not merely require that the measure chosen is in principle suited for realising the aim sought. It must also be shown that it was necessary in order to achieve that aim to exclude certain categories of people – in this instance persons living in a homosexual relationship – from the scope of application of section 14 of the Rent Act. The Court cannot see that the Government have advanced any arguments that would allow such a conclusion” (see §41).
The European Commission of Human Rights took a somewhat different view. In the Report which the Commission issued on 1 March 1979 in Van Oosterwijck v. Belgium (Application no. 7654/76), it said that: “Doubtless the government pointed out that the operations to which the applicant (a transsexual person) subjected himself deprived him of the ability to procreate; he thereby made it impossible for himself to exercise his right to found a family, which Article 12 (of the Convention) indissolubly links to the right to marry”. With regard to this argument the Commission held that “while marriage and family are effectively associated with one another in the Convention, as they are in national laws, nonetheless nothing enables us to deduce therefrom that the ability to procreate is a fundamental condition for marriage, or even that procreation is an essential purpose thereof”. Moreover, a family “can always be founded by adopting children, but in this respect we should note that while impotence is sometimes considered to be a cause of the nullity of a marriage, this is generally not the case with sterility” (see §59, retranslated from a Portuguese translation). At the same time, in a number of cases in which the Commission held that it should be possible for inmates to exercise the right to marry, even when they are serving life terms, it dissociated that right not only from the physical ability to procreate, but also from the possibility of having sexual intercourse itself (see Hamer v. the United Kingdom, report issued by the Commission on 13 October 1977, Application no. 7114/75; Draper v. the United Kingdom, report issued by the Commission on 10 July 1980, Application no. 81/86/78). Having said this, in C. and L. M. v. the United Kingdom (Application no. 14753/89, retranslated from a Portuguese translation), on 9 October 1989 the Commission decided that “a lesbian relationship involves private life as defined in Article 8 of the Convention. However, although deportation has repercussions for such relationships, it cannot in principle be seen as an interference with this provision of the Convention, given the State’s right to impose immigration limits and controls”. As such, “the immigration rules in question attach priority to better guarantees for traditional established families, more than they do to other established relationships, such as a lesbian union. The Commission has not found discriminatory elements contrary to Article 14 of the Convention in such a policy, given the special protection afforded to the traditional family”. Finally, referring to Rees, the Commission held that for the persons in it, a lesbian relationship does not give rise to a right to marry and found a family, with the meaning contained in Article 12 of the Convention.
In the ruling it handed down on 17 February 1998, the Court of Justice of the European Communities (case no. C-249/96, Lisa Jacqueline Grant v. South-West Trains Ltd.) held that: “The refusal by an employer to allow travel concessions to the person of the same sex with whom a worker has a stable relationship, where such concessions are allowed to a worker's spouse or to the person of the opposite sex with whom a worker has a stable relationship outside marriage, does not constitute discrimination prohibited by Article 119 of the Treaty or Directive 75/117”. The Court was of the opinion that: “Community law as it stands at present does not cover discrimination based on sexual orientation, such as that in issue in the main proceedings”, but accepted that once the Treaty of Amsterdam came into force and subject to the terms of Article 6-A of the EC Treaty, the Council would be able to adopt the measures needed to eliminate different forms of discrimination – particularly those based on sexual orientation. Later on, in the ruling it handed down on 31 May 2001 (in the joined cases C-122/99 P and C-125/99 P, Kingdom of Sweden and others v. the Council of the European Union), the Court of Justice considered the question of whether a decision that deprived a Swedish official of an allowance to which her married colleagues were entitled, solely on the grounds that the partner with whom she lived was of the same sex, constituted gender-based discrimination contrary to Article 119 of the Treaty. In the words of the Court: “The principle of equal treatment can apply only to persons in comparable situations, and so it is necessary to consider whether the situation of an official who has registered a partnership between persons of the same sex, such as the partnership entered into by (the appellant) under Swedish law, is comparable to that of a married official”. In order to reach this position, the Court considered that the “Community judicature” could not disregard “the views prevailing within the Community as a whole”. Given the great diversity of laws and the absence of any general assimilation of marriage and other forms of statutory union, the Court said that “the plea relating to infringement of the principle of equal treatment and discrimination on grounds of sex must be rejected”.
Another noteworthy decision is that handed down by the German Constitutional Court on 17 July 2002, on the constitutionality of the law governing life partnerships, which had come into force on 1 August 2001. The difference in perspective compared to that adopted by the courts in Canada, the States of Massachusetts and California, and South Africa lies first of all in the fact that the German Court was able to say that the creation of an institution which is autonomous in relation to marriage must be seen against a backdrop in which the German legislators had felt that their Constitution precluded them from extending marriage to same-sex unions (in this respect see Dieter Schwab, “Eingetragene Lebenspartnerschaft – Ein Überblick”, in idem [ed.], Die eingetragene Lebenspartnerschaft, Bielefeld, 2002, p. 148). According to the German Constitutional Court, the reasons for this are linked to the special protection which the Constitution affords to marriage. The Court said that: “the Constitution does not in itself contain any definition of marriage, but presupposes one as a special form of human cohabitation. As such, for constitutional protection to be a reality, there must be a legal regime that shapes and delimits the form of living together which the Constitution protects under the heading of marriage. The legislator enjoys considerable leeway to configure this format when it comes to deciding the form and content of the concept of marriage (...). The Constitution does not guarantee the institution of marriage abstractly, but rather in the configuration that matches the dominant vision expressed in the current legal regime (...). In any case, when it configures marriage the legislator must bear in mind the structural principles associated with Article 6(1) of the Constitution (“Marriage and family enjoy the special protection of the state”), to the extent that they concern the normative form which corresponds to the realities that have been found to exist in society. In particular, the legislator must ensure the free nature of the fundamental right that is guaranteed in Article 6 and other constitutional norms (...). However society may evolve, and whatever the resulting transformations, the substance of marriage, as the latter is protected and moulded by the Constitution, includes its definition as the union of a man and a woman living together in a lasting way, founded on a free decision and with the collaboration of the State (...), in which the man and the woman possess the same rights and can freely decide how to shape their life together” (§87, retranslated from a Portuguese translation). At the same time, in the same decision the Court said that one cannot infer from the special protection which the Constitution affords to marriage that the latter must always be protected to a greater extent than other forms of living together (§99), and that this means that the institution of same-sex life partnerships must be permissible.
The German Constitutional Court was also of the view that the fact that homosexual persons only had access to life partnerships, while marriage continued to be reserved to heterosexual persons, did not represent a violation of the principle of equality. The Court said that by providing for civil unions between persons of the same sex, the law “does not associate rights and obligations with a person’s gender, but rather associates a personal connection that grants access to a life partnership with the combination of genders. It is to the persons who are united in this way that the law attributes rights and duties. Just as marriage, with its restriction to persons of different sexes, does not discriminate against same-sex couples because of their sexual orientation, so same-sex unions do not discriminate against opposite-sex couples because of their orientation. Women and men can marry a person of a different sex, but not a person of the same sex; anyone can enter into a civil union with a person of the same sex, but not with a person of a different sex” (see §106, retranslated from a Portuguese translation). According to the German Court, the difference that thus makes it possible to distinguish between homosexual and heterosexual persons with regard to the legal bonds which they wish to attach to the life unions between them is as follows: “The difference, which consists of the fact that a relationship between a man and a woman who are united for a long time can result in their having children together – something that cannot happen in a same-sex union – justifies that pairs of persons of different sexes are directed towards marriage when they want their life together to be the object of a lasting legal bond” (see §109, retranslated from a Portuguese translation).
9. We have already said that the object of the present appeal is the rule contained in Article 1577 of the Civil Code, which says that marriage must be entered into “by persons of different sexes"; in the opinion of the appellants, this norm is unconstitutional inasmuch as it prohibits persons of the same sex from marrying one another.
This submission deserves our attention; in truth it is clear that the appellants are not accusing the norm that permits persons of different sexes to enter into marriage of being contrary to the Constitution; what they do say is that persons of the same sex also ought to be allowed to marry – a requirement they deduce directly from the Constitution. In other words, the appellants believe that we are faced with the absence of a norm that would be needed in order to execute an order given by the Constitution. The simple fact is that putting the question in this way immediately denotes a question of unconstitutionality by omission, and the Constitution itself says that raising this type of question requires powers which it does not grant to private individuals (Article 283).
However, there can be no doubt that the Court cannot deny the appellants the opportunity to see their appeal analysed, given that in the decision against which they have appealed, the norm they have challenged was effectively applied with a meaning that is alleged to be unconstitutional. However, it is useful to emphasise – so that the limits on the extent to which the Court can pronounce itself are clear – that, as we have seen, the appellants’ petition, the structure of which is close to that of a request for a review of whether an unconstitutionality by omission exists, is subject to Article 280(1)(b) of the Constitution and Article 70(1)(b) of the LTC, and is therefore necessarily restricted to the norm that has effectively been applied with an allegedly unconstitutional content. This is why we can be absolutely certain that within the scope of the present appeal, the Court is precluded not only from adding norms that would be needed to execute a hypothetical ruling upholding the petition, but also from assessing the compliance with the law of other norms derived from the legal rules governing marriage, such as those concerning the latter’s effects, which were manifestly not applied in the decision against which the present appeal has been lodged.
10. In the wake of what we have already said, it is important to note that the question that is before the Court within the ambit of the present appeal is not whether the Constitution permits the establishment of a regime for same-sex marriages. There is a sharper edge to the question, inasmuch as it actually asks whether the Constitution requires – as the appellants say it does – that marriage be configured in such a way as to encompass same-sex unions.
Article 36 of the Constitution reads as follows:
(Family, marriage and filiation)
1. Everyone has the right to form a family and to marry on terms of full equality.
2. The law shall regulate the requisites for and the effects of marriage and its dissolution by death or divorce, regardless of the form in which it was entered into.
3. Spouses have equal rights and duties in relation to their civil and political capacity and to the maintenance and education of their children.
4. Children born outside wedlock may not be the object of any discrimination for that reason, and neither the law, nor official departments or services may employ discriminatory terms in relation to their filiation.
5. Parents have the right and the duty to educate and maintain their children.
6. Children may not be separated from their parents, save when the latter do not fulfil their fundamental duties towards them, and then always by judicial decision.
7. Adoption shall be regulated and protected by the law, which must lay down swift forms for completion of the necessary requirements.
Paragraphs (1) and (2) of this precept are particularly relevant to the case before us. They have not been changed since the Constitution was originally written in 1976. We must inevitably bear in mind that at the time when the Constitution was drafted and first came into force, and in doing so charged the ordinary legislator with the task of laying down the "requisites" for and effects of marriage, Article 1577 of the Civil Code already stated that: "Marriage is the contract entered into by two persons of different sexes". The precise current text of Article 1577 was the result of some small changes made by Executive Law no. 496/77 of 25 November 1977 – a legislative act that was in fact passed with the stated intent of making the Civil Code “compatible” with the Constitution.
We cannot fail to attach importance to this fact when we come to interpret the law.
In truth, if the constitutional legislator had wanted to change the legal configuration of marriage by requiring the ordinary legislator to legislate in such a way as to change the law so that persons of the same sex could marry, it would certainly have said so explicitly and not have limited itself to legitimating the concept that was configured by the civil law; and it had plenty of opportunities to do so, over the course of the subsequent constitutional revisions. Indeed, the appellants particularly emphasise the amendment to Article 13(2) that was made by the sixth revision of the Constitution, which expressly forbade discrimination based on "sexual orientation" (along with other possible sources of discrimination, such as ancestry, sex, race, language, place of origin, religion, political or ideological beliefs, education, economic situation and social circumstances). But the truth is that adding sexual orientation to the list of situations due to which, in homage to the principle of equality, "No one may be privileged, favoured, prejudiced, deprived of any right or exempted from any duty", simply means that a person’s sexual orientation is irrelevant as far as the legal order is concerned.
Apart from this, the appellants’ argument proves too much from the point of view of their thesis – the fact is that they completely fail to explain why the constitutional legislators did not complete the supposed requirement for the existence of same-sex marriage by adding an order to that end to Article 36 of the Constitution. Precisely because of the amendment to Article 13(2), it is not legitimate to think that the constitutional legislators felt that an express normative reference with that objective was unnecessary.
The appellants say that they believe that extending marriage to persons of the same sex would not involve redefining the legal order, but just removing the result of the norms they have challenged, which restricts marriage to persons of different sexes – something which they say is inadmissible in the light of the principles of equality and the dignity of the human person. But the fact that the aforementioned Article 36(1) of the Constitution expressly refers to marriage without defining it shows that the constitutional legislator did not want to undermine the common concept, which has its roots in the community and is incorporated into the civil law and is configured in the form of a “contract entered into by two persons of different sexes”. As we have already said, paragraph (2) of the same Article 36 suggests the same thing when it states that “The law shall regulate the requisites for and the effects of marriage” (see Gomes Canotilho and Vital Moreira, Constituição da República Portuguesa Anotada, vol. I, 4th edition, Coimbra, 2007, p. 362). In a note on Article 36 Gomes Canotilho and Vital Moreira say:
[...] Having said this, the expansion of the scope of the protection provided by the precept to include the reality formed by diverse and plural family communities has not been transferred from this level to that of same-sex marriages. There can be no doubt that the principle of the democratic state based on the rule of law, the principle of personal freedom and autonomy, the prohibition on discrimination due to homosexual orientation, and the right to the development of one’s personality, which is naturally associated with it, suffice to guarantee each person’s individual right to set up a joint life with any partner of his/her choice (see note to Article 13) (albeit always subject to the limitation imposed by the disqualifications that preclude marriage in the restricted sense of the term, which obviously prohibit homosexual unions between sisters, brothers, mothers/children, fathers/children etc., as well as those involving persons who are not yet of marriageable age). But the constitutional accommodation of the historical concept of marriage as a union of two persons of different sexes, which is intersubjectively rooted as an institution in the community, does not enable us to conclude that the Constitution requires a direct and obligatory recognition of marriages between persons of the same sex (which some people would like us to believe results from Article 13), albeit this does not necessarily prohibit the legislator from recognising them, or saying that they are equivalent to marriages (as other people want).
In their note on Article 36 in Constituição Portuguesa Anotada, Jorge Miranda and Rui Medeiros say that:
“(…) On the one hand, the Constitution does not enshrine a right to marry on the part of homosexuals. On the contrary, as we pointed out earlier, the Constitution requires the legislator to respect the structural principles of marriage in the Portuguese legal order, and it would be difficult to say that those principles do not include the requirement that the two spouses be of different sexes. Similarly, where adoption is concerned, and given that the Constitution leaves the latter’s regulation and protection to the ordinary law, there is nothing to stop the ordinary legislator, with its democratic legitimacy, from excluding adoption by same-sex couples. This is all the more true in that within the arena of public discussion there is controversy about the extent to which the superior interest of the child is compatible with the admissibility of adoption in such cases. To paraphrase Ruling no. 105/90, the Constitution’s openness must continue to be applicable ‘when the legal community is the stage for different perspectives and differing points of view and disagreements as to the results or implications that one ought to deduce, for a given area or a given legal problem, from one of the Constitution’s ‘open’ principles. Above all in this situation – in which, in the legal community, we must recognise and admit the legitimacy of a pluralism of ways of seeing the world or a pluralism of conceptions – it undoubtedly falls to the legislator (the democratic legislator) to choose and decide’ ”.
In addressing the question of whether the right to marry provided for in the Constitution should be extended to same-sex marriages, we must therefore exclude both the understanding that such an extension would not involve a judicial redefinition of marriage, and the understanding that the marriage to which the Constitution affords its protection involves a petrifaction of marriage as it is currently defined in the civil law, thereby excluding the legal recognition of other ways in which people live together and which have effects that are analogous to those of marriage.
The above remarks must not be seen as entailing acceptance of the view that under Article 36 of the Constitution marriage attains the scope of a guarantee such that the constitutional norm definitively limited itself to admitting the concept of marriage which was in force in the civil law at a given moment in time. It is not possible to see institutional guarantees in this way – a way that takes not the Constitution, but rather the ordinary law as a parameter for gauging constitutional protection. The fact is that we do not accept the understanding that the marriage which is the object of constitutional protection involves a petrifaction of marriage in its current civil-law definition, thereby excluding legal recognition of other ways in which people live together and share their lives.
11. We may recall that the Court referred to the constitutional principle of the dignity of the human person in the following terms, in Ruling no. 105/90 (www.tribunalconstitucional.pt):
“(...) while the content of the idea of the dignity of the human person is something that must necessarily acquire its concrete form as history and culture develop, we can see that in the modern State — and in addition to the projections of that idea which are directly reflected at the constitutional level in specific principles contained in the CRP (maxime, those concerning the recognition and enshrinement of the fundamental rights) — it is the legislator that must primarily be responsible for that concretisation process: within the overall framework of the different organs of sovereignty, it is the legislator that possesses a special vocation to ‘create’ the legal order and its “dynamic”; and, with the democratic legitimacy it possesses for the purpose, it is first and foremost the legislator that is entrusted with the task or responsibility of, at each different moment in history, ‘reading’ and translating the results, implications or requirements of the ‘open’ principles in the Constitution (and here one example is precisely the principle of the ‘dignity of the human person’) and embodying them in the appropriate legislation. And — turning to the point in the present case — this means that when we perform the jurisdictional control of the legal/normative solutions which the legislator has reached in this way (at the end of the day, the control of the way in which the legislator has filled the space which the Constitution left it to the legislator – precisely to the legislator – to fill), we must do so with particular caution and restraint. So the truth is that it is only when there is a real and unequivocal incompatibility between those solutions and the constitutional regulatory principle in question — real and unequivocal, not by the judge’s subjective criterion, but according to an objective criterion, such as (to use an expressive formula from legal theory) that of ‘all those who think correctly and fairly’ — only then, when it is undeniable that the fact is that the legislator has not ‘implemented’, but has instead ‘subverted’ the core of the constitutional axiology that ought to have guided it, is it acceptable for the courts (and the Constitutional Court in particular) to conclude that those solutions are unconstitutional.
And if these thoughts are pertinent in general terms, they will be all the more so when the legal community is the stage for different perspectives and differing points of view and disagreements as to the results or implications that one ought to deduce, for a given area or a given legal problem, from one of the Constitution’s ‘open’ principles. Above all in this situation – in which, in the legal community, we must recognise and admit the legitimacy of a pluralism of ways of seeing the world or a pluralism of conceptions – it undoubtedly falls to the legislator (the democratic legislator) to choose and decide.”
The understanding expressed in the above Ruling is entirely valid in the present case.
12. We should note that the constitutions of the legal orders in which there has been a judicial redefinition of marriage did not contain norms equivalent to Articles 36 and 67 of the Portuguese Constitution. Indeed, those legal orders, all of which had Anglo-Saxon roots, possess a specific nature that does not match the tradition rooted in the 1789 French Declaration of Rights; the continental constitutions essentially seek to configure the State’s conduct in the light of democratic principles and the primacy of the law, whereas the constitutions which uphold the tradition of the British Bill of Rights – or more precisely the Virginia Declaration of Rights issued in June 1776 – emphasise the need to limit the power of the government – i.e. legislative power – by granting individuals the power to bring before an independent court such suits as are necessary in order to defend their rights, whenever they feel that those rights are being threatened or restricted. In any case, the history of constitutionalism is marked by the progressive constitutionalisation of human rights, and it is possible to see how the majority way of thinking in the community has evolved along the lengthy path that has already been travelled since the time when a right which is now so radically claimed to be absolute and essential, such as the right to vote, was reserved to citizens who were adult, male and property owners. But, in essence, the incorporation of such rights into our constitutions is based on the concern to catalogue them, and not on the desire to expand them by means of an evolution ordered by a court. The core consequence of the inevitable acceptance of the sovereignty of the people and the enshrinement of the system of the separation of powers implies not only yielding to the decisions handed down by impartial, independent organs like the courts, but also accepting that the task of reforming the legal order pertains to the organs that directly represent the popular will and are given the power to make choices of a political/legislative nature.
When the Canadian, Massachusetts, Californian and South African Supreme Courts took the decisions we mentioned earlier to recognise that homosexual persons had a constitutional right to marry one another, they agreed to make a profound change in the meaning that marriage possessed in the current law applicable in their legal orders, albeit at the same time they considered that they were not affecting the fundamental value of marriage in their societies. In reaching their decisions they felt that there is no necessary link between marriage and procreation, and also that extending marriage to homosexual persons does not in any way affect the ability of heterosexual couples, should they so wish, to go on seeing marriage as a means of promoting procreation. To put it another way, a broader definition of marriage such that it encompasses homosexual persons would continue to allow people who subscribe to a traditional notion of marriage to have a conjugal relationship that is structured on the basis of those values. However, this way of seeing things not only signifies in its own right accepting the existence of an opposition between a ‘traditional’ concept of marriage and an opposing ‘encompassing’ one, within the scope of which it is possible to extend the right to marry to same-sex couples; it also means denying that, even on the institutional level, there is any connection between marriage and the raising and education of children by their biological parents.
It is clear that what is at stake here is not a denial that the legal effects of marriage do not presuppose the possibility of procreation, or even the will to procreate. It would indeed be strange – and certainly unacceptable under the Constitution – for the establishment of any connection between marriage and procreation to entail imposing the latter on spouses. The simple fact is that we are not forced to reduce marriage to its effects, and Article 36(2) of the Constitution clearly distinguishes between the requisites for, and the effects of, marriage. The link that it is possible to meaningfully make between marriage and procreation operates at the level of the fact that the former is considered to be a social institution via which the State resorts to the potential of the law to disseminate certain values in society – in the present case, those values according to which on the one hand marriage is a specific means of involving one generation in the creation of the next, and on the other the only means of that kind which ensures that a child enjoys the right to know and be educated by his/her biological parents. Now, it seems clear that redefining marriage as a union of two persons, whatever their gender, makes this framework of references impossible. Given the definition of marriage that is currently in force, it is also possible to see it as a complete union of a man and a woman that is directed towards the joint education of the children they may have; the definition of marriage which the appellants are seeking sees it as a private relationship between two adult persons that essentially seeks to fulfil their own needs. Indeed, this is the only explanation as to why the appellants decided to frame their goal in the light of the principle of contractual freedom, as provided for in Article 405 of the Civil Code. It does not seem to us that choosing one of these two views of marriage is a matter that falls within the competence of this Court, whose responsibility is solely to determine the extent to which, when the legislator makes this choice, it complies with the provisions of the Constitution.
13. While we must necessarily accept that, if one looks at things from a certain perspective which it is not entirely possible to put aside, the appellants’ goal involves a profound revision of the concept of marriage that is currently in force under the civil law, this does not mean that we must also accept that the concept must also impose itself, just like that, on the constitutional-law level itself. As we have already said, it would only be possible to accept such a thing within the framework of an understanding of institutional guarantees that we must deem to be inappropriate. In a different way, the useful meaning that one might draw from the institutional guarantee format is that it obliges the legislator to create rules which ensure that same-sex unions possess a functional content that is equivalent to marriage. However, the fact is that nothing requires that those rules involve a simple extension of the institution of marriage to persons of the same sex. The opposite conclusion would presuppose that the legislator – and certainly not this Court, as we already have said – had first clearly opted for a conception of marriage as a simple private relationship. Only in that context would the principle of equality make it constitutionally illegitimate to restrict marriage to heterosexual couples. However, this is not the option that underlies the current legislative framework. In short, and as Gomes Canotilho and Vital Moreira say in this respect: “the incorporation into the Constitution of the historical concept of marriage as a union of two persons of different sexes means that it is not possible to deduce from the CRP a direct, obligatory recognition of same-sex marriages (as some people would like to think is the case on the basis of the new text of Article 13)” (op cit., p. 568).
14. As we said earlier, the answer to the question of whether the challenged norms violate the principle of equality lies in the conception of marriage that is adopted. If one sees marriage as a social institution that is presented to spouses as possessing a relatively stable meaning, as a union of a man and a woman, which is particularly based on the function for which that union is responsible when it comes to the reproduction of society, it may make sense to reserve marriage to heterosexual couples. On the other hand, it is only if one were to adopt a conception of marriage as a purely private relationship between two adult persons, without any projection in terms of the reproduction of society, that the exclusion of homosexual couples would necessarily be seen to be discriminatory. Now the thing is that, as we have said, this is not the option that our legislators have adopted.
These considerations are joined by a number of other reasons that also make it impossible to decide that the challenged norms are unconstitutional. These reasons are especially relevant in a case like the one before us, where the concrete implementation of the principle of equality is allegedly at stake. In reality, a decision to hold the challenged norms unconstitutional would clearly possess an additive nature and one whose legitimacy in the light of the principle of the separation of powers would be doubtful. Doubtless, in both abstract review cases and cases involving the concrete review of constitutionality, the Court has sometimes used this type of decision to defend the principle of equality from forms of discrimination against certain categories of people. However, as a rule that use is restricted to cases in which what is at stake is an expansion of a general regime by means of the elimination of special or exceptional norms that are contrary to the Constitution, or else an expansion of a more favourable regime that ought to be configured as a constitutionally obligatory solution. For the reasons we have given, neither of these hypotheses applies to the present case.
15. The allegation of a violation of the right to enter into marriage, and also of the principles of the dignity of the human person and equality, is therefore not valid. What is more, the argument that there is also a breach of the guarantee applicable to the formation and protection of the family that results from a combination of Articles 36(1) and 67 of the Constitution is certainly mistaken, inasmuch as there is nothing to prevent the appellants from being able to form a ‘family’, even if they are not able to legally enter into marriage.
IV – Decision
16. As such, the Court hereby decides to deny the appeal, and to confirm the decision against which it was lodged where the question of unconstitutionality is concerned. Costs to be borne by the appellants, with the court fee to be set at 25 UC.
Lisbon, 9 July 2009
Carlos Pamplona de Oliveira
José Borges Soeiro
Gil Galvão (dissenting, as per the attached opinion)
Maria João Antunes (dissenting, as per the attached opinion)
Rui Manuel Moura Ramos
Albeit not without a number of hesitations, I dissented from the decision. In truth, while I acknowledge that “reforming the legal order pertains to the organs that directly represent the popular will and are given the power to make choices of a political/legislative nature”, it does not appear to me to be enough to simply make a ‘praetorian’ affirmation that it is not permissible to “conclude that the Constitution requires a direct and obligatory recognition of marriages between persons of the same sex” in order to deny the clearly contrary arguments which – in my opinion, necessarily, and independently of any other reform of the legal order – result from the combination of the text of Article 36(1) and the new text of Article 13(2) of the Constitution of the Portuguese Republic. Thus, inasmuch as I considered that neither the traditional arguments with regard “to procreation and the education of offspring”, which were not even adopted in the 1966 Civil Code, nor others that are usually invoked – and are refuted, in ways that appear to me to be definitive, in some of the opinions that have been attached to the case file – are appropriate to the present debate, and inasmuch as I am unable to find any justification for the solution adopted by the majority, other than the ‘praetorian’ affirmation to which I have already referred, my vote was that the norm which was the object of the appeal is unconstitutional.
I dissented because I felt that the part of Article 1577 of the Civil Code (CC) which says that marriage is a contract entered into by two persons of different sexes is unconstitutional because it is in breach of Articles 13(2) and 36(1) of the Constitution of the Portuguese Republic (CRP).
Although I agree with the view that the answer to the question of whether the challenged norms violate the principle of equality lies in the conception of marriage that is adopted, I believe that marriage is not “a social institution that is presented to spouses as possessing a relatively stable meaning, as a union of a man and a woman, which is particularly based on the function for which that union is responsible when it comes to the reproduction of society”, and “a specific means of involving one generation in the creation of the next, and on the other the only means of that kind which ensures that a child enjoys the right to know and be educated by his/her biological parents”. Such a conception is not derived from the CRP. Indeed, the opposite is indicated by the fact that the Constitution enshrines: the right to form a family, as a right that is distinct from the right to marry (Article 36); the constitutional principle of non-discrimination against children who are born outside wedlock (first part of Article 36); the constitutional protection afforded to the family (Article 67); and the constitutional protection afforded to fatherhood and motherhood (Article 68).
Nor is it derived from the law. The law configures marriage as a contract entered into by two persons who wish to form a family by fully sharing their lives, under the terms of the provisions of the CC, to which it annotates a reciprocal obligation to fulfil the associated duties of respect, fidelity, cohabitation, cooperation and assistance (Article 1672 of the CC), that their shared life should be exclusive to them (Article 1601[c] of the CC) and that it should tend to last for ever (Article 1773 of the CC). These are essential footnotes to the marriage contract whose compliance with the Constitution is unquestionable and which do not permit the establishment of any link to the sexual orientation of the parties.
The reference to marriage in Article 36 of the CRP obviously supposes that marriage possesses a certain configuration that is set out in the civil law, and it is even expressly left to the law to determine the requisites and effects of marriage. But this can only signify a legal configuration that complies with the Constitution, particularly with regard to the conception of marriage and to the concrete regulation of the requisites of the contract. There is therefore no need for the constitutional norm to explicitly state that it is permitted for persons of the same sex to marry.
Under the second part of Article 36(1) of the CRP everyone has the right to enter into marriage on terms of full equality. I.e. everyone has the right, without any differentiation, to gain access to that which it means from the legal (and symbolic) point of view to enter into a contract between two persons who wish to form a family by fully sharing their lives, under the terms of the provisions of the CC.
The part of Article 1577 of the CC which says that marriage is a contract entered into by two persons of different sexes deprives its holder of the right provided for in the second part of Article 36(1) of the CRP because of his/her homosexual orientation, and this is constitutionally illegitimate (Article 13).
In the absence of sufficient material grounds for this differentiation, this is the conclusion that I am obliged to reach.
Maria João Antunes