Right to marriage
RULING Nº 359/2009
9 of July of 2009
The Civil Code rule that defines marriage as a contract entered into by two persons of different sexes is not unconstitutional.
The petitioners 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, as well as the existence of an unconstitutionality by omission because the law does not 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 that must be guaranteed in a state based on the rule of law and founded on the primacy of human dignity and freedom.
In its arguments, the Public Prosecutors’ Office (PPO) emphasised that it was completely inappropriate to begin by arguing the existence of an unconstitutionality by omission and of the effects that such an omission would generate, because this argument is incompatible with the concrete-review nature of the present case. The PPO then went on to point out that nothing obliges the infra-constitutional legislative authorities to accept the various sociological concepts of “family” on an entirely equal footing, in such a way that – by direct constitutional requirement – every type of family would have to be granted exactly the same degree of legal recognition and protection. In the PPO’s opinion, if the Constitutional Court were to uphold the appeal, it would have to hand down an “additive decision” in which it jurisprudentially expanded the legal institution of marriage itself, as currently derived from the normative provisions of the civil law.
The PPO went on to say that this type of “additive decision” is the format that is deemed appropriate to restoration of the constitutional principle of equality when the latter is breached by a given set of restrictive, limitative or “discriminatory” rules. However, it 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 to the PPO’s arguments, the petitioners focused their case 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 to be unconstitutional, and this thus became the scope of the appeal which the Court agreed to hear.
The petitioners 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. The petitioners did not say that the rule which allows persons of different sexes to marry is unconstitutional. Their position was that persons of the same sex should also be allowed to marry – a requirement that they deduced directly from the Constitution. In other words, in the petitioners’ opinion this was a situation in which a rule that was necessary in order to implement a constitutional requirement did not exist. However, to pose the issue in these terms is to define it as a question of unconstitutionality by omission, and the Constitution itself says that raising this type of question requires powers that it does not grant to private individuals.
Nevertheless, the Constitutional Court felt that it should hear the appeal, because in the decision handed down by the Lisbon Court of Appeal, the latter effectively applied the challenged rule in a sense that the petitioners considered unconstitutional. However, in order to make the limits on its own decision perfectly clear, the Constitutional Court emphasised that the petition, the structure of which appears to be close to that of an allegation of the existence of an unconstitutionality by omission, necessarily had to restrict itself to the rule that was actually applied in an allegedly unconstitutional sense. This is why the Ruling underlines the fact that within the scope of the appeal before it, the Court was not only precluded from adding rules needed to implement a hypothetical finding that the appeal should be upheld, but was also unable to evaluate the conformity with the law of other rules derived from the legal treatment of marriage, such as those concerning the latter’s effects, which were manifestly not applied in the decision against which the present appeal was lodged.
The Constitutional Court also felt that the question that was posed within the scope of the present appeal does not lie in knowing whether the Constitution permits the creation of a system of homosexual marriage, but rather in whether – as the petitioners would like – it is a constitutional requirement that the institution of marriage be configured in such a way as to include unions between persons of the same sex. In analysing this question the Court felt that importance should be attached to the fact that the text of paragraphs (1) and (2) of Article 36 of the Constitution (which enshrine the right to found a family and to marry on terms of full equality, and charge the ordinary law with determining the requirements and effects of both marriage and its dissolution) has remained unchanged since the original version of the Constitution was passed in 1976. At that historic moment, when the Constitution handed the ordinary legislative authorities the task of writing the rules on the "requirements for" and effects of marriage, Article 1577 of the Civil Code already stated that “marriage shall be a contract entered into by two persons of different sexes ". If the constitutional legislative authorities had wanted to change the legal configuration of marriage by ordering their ordinary counterparts to pass legislation permitting persons of the same sex to marry, they would have said so explicitly, and not limited themselves to legitimating the concept set out in the civil law of the day. The petitioners placed special emphasis on the amendment to Article 13(2) of the Constitution (on the principle of equality) which was introduced by the sixth revision of the Constitution (2004), and which expressly prohibits discrimination based on “sexual orientation”. However, the Court felt that the addition of sexual orientation to the list of circumstances by means of which "No one shall be privileged, favoured, prejudiced, deprived of any right or exempted from any duty", only means that the legal order is indifferent to a person’s sexual orientation. The Court considered that the petitioners’ argument proves too much, in the sense that it does not explain why, in 2004, the constitutional legislative authorities did not complete the supposed imposition of homosexual marriage by adding such a provision to Article 36 of the Constitution – a question that poses itself because, precisely given the amendment to Article 13(2), it is not legitimate to believe that those authorities thought it unnecessary to include an express normative reference to that end.
The Court also mentioned that the petitioners presented an understanding according to which extending marriage to persons of the same sex would not entail redefining the legal order, but just removing the restriction of marriage to persons of different sexes – a restriction which they said is inadmissible under the principles of equality and the dignity of the human person. However, the circumstance that the Constitution expressly talks about marriage, without defining it, shows that it does not seek to overturn the common concept, which is rooted in the community and accepted by the civil law, under which marriage is configured as a “contract entered into by two persons of different sexes”. The Court corroborated the opinion of a number of authors, to whom the Constitution’s acceptance of the historical concept of marriage as a union between two persons of different sexes does not mean that the Constitution can be interpreted as directly and obligatorily requiring recognition of marriages between persons of the same sex. Having said this, nor does the Constitution necessarily forbid the legislative authorities from legally recognising unions between persons of the same sex, or considering those unions to be the same as marriages. The Ruling says that the fact that the Court accepts that the marriage which Article 36 has in mind must be entered into by persons of different sexes, does not mean that the Court is endorsing the understanding that Article 36 possesses the scope of a guarantee, such as to say that the constitutional rule limits itself to definitively accepting the concept of marriage that was in force in the civil law at a given moment in time. It is not possible to look at institutional guarantees in this way, and to take the ordinary law and not the Constitution itself as the parameter for gauging the extent of constitutional protection. The Court therefore did not accept the understanding that the form of marriage which is protected by the Constitution imperatively involves petrifying the existing civil-law definition of marriage and excluding the legal recognition of other forms in which people share their lives. The Court referred to the comments it had made in an earlier Ruling, in which it said that the historical/cultural implementation of the content of the idea of the dignity of the human person must fall primarily to the legislative authorities, because within the overall framework of the bodies that exercise sovereign power, it is they who are primarily responsible for the creation of the legal order and for its dynamics. It is the legislative authorities that possess the democratic legitimacy to, at each given point in history, “read” and translate the consequences, implications and requirements at that same moment in time of the principles that are “opened up” by the Constitution, and place them in the corresponding legal system.
The Court also pointed out that the history of constitutionalism is marked by the progressive constitutionalisation of human rights, and that it is possible to observe how the thinking of the majority of the community has evolved over the long path it has travelled since the time when a right like the right to vote was reserved for citizens who were simultaneously adult, male and land-owners. However, in essence the process of incorporating such rights into a constitution is based on the concern to ensure that the constitutional legislator catalogues them, and not on the will that they be extended in an evolution ordered by a court. One key consequence of accepting the sovereignty of the people is the enshrinement of the system of the separation of powers, but the other implies not only acceptance of the decisions issued by impartial and independent bodies, such as the courts, but also accepting that the reform of the legal order is in the hands of bodies that strictly represent the popular will and are invested with the power to make choices of a political/legislative nature.
The Court emphasised that while it is necessary to accept that, from a certain point of view which must be taken into account, that which the petitioners were seeking involves a deep-reaching revision of the existing civil-law concept of marriage, this does not mean that that concept has to impose itself on the constitutional-law level. Such an acceptance could only occur within the framework of an understanding of the institutional guarantees category that must be seen as inappropriate. On the other hand, the useful meaning that one could attribute to the institutional guarantee format would be the obligation on the part of the legislative authorities to create rules that establish a functional content for same-sex unions that was equivalent to that of marriage. But there is nothing to say that those rules must involve an extension, pure and simple, of the institution of marriage to persons of the same sex. Any other conclusion would presuppose that the legislative authorities – but not the Court – clearly opt for a concept that sees marriage as a simple private relationship. Only in such a context would the principle of equality make it constitutionally illegitimate for marriage to be restricted to heterosexual couples.
The Ruling includes two dissenting opinions. The author of one says that he hesitated in relation to the majority solution, but could not see any arguments in its favour other than traditional ones that he felt were unacceptable. The second dissenting Justice said that she agreed with the understanding that determining whether the challenged rule is in breach of the principle of equality is a question to which the answer is to be found in the concept of marriage that is adopted. Unlike the majority, however, she considered that marriage is not “a social institution that is presented to spouses as possessing a relatively stable meaning – that of a union between man and woman, which is particularly based on its function in the reproduction of society”, and which constitutes “a specific means of involving one generation in creating and raising the following one, and the only such means that ensures that a child enjoys the right to know and be educated by his/her biological parents”. On the contrary, the author of the second dissenting opinion felt that the constitutional rule means that everyone has the right to marry on terms of full equality. I.e. everyone has the right to gain access, without any differentiation, to the legal (and symbolic) meaning of the act of entering into a marriage undertaken by two persons who want to found a family by fully sharing their lives, as laid down by the Civil Code. The dissenting Justice said that in the absence of sufficient material grounds for differentiation – which she was unable to find – this was the conclusion she reached.
The Ruling refers extensively to comparative jurisprudence, including that of the European Commission of Human Rights and the Court of Justice of the European Communities.