Marriage as a symbolic institution
RULING No. 121/2010
Case no. 192/2010
Rapporteur: Justice Vítor Gomes
Ruling of the Constitutional Court sitting in Plenary
1. Under the terms of Article 278(1) and (3) of the Constitution of the Portuguese Republic (CRP), and of Article 51(1) and Article 57(1) of the Law governing the Organisation, Modus Operandi and Procedure of the Constitutional Court (LTC), as approved by Law no. 28/82 of 15 November 1982 and most recently amended by Law no. 13-A/98 of 26 February 1998, in accordance with the prior review procedure the President of the Republic has asked the Court to consider the constitutionality of the norms contained in Article 1, Article 2 – the latter to the extent that it amends the text of Articles 1577, 1591 and 1690(1) of the Civil Code – Article 4 and Article 5 of Decree of the Assembly of the Republic no. 9/XI, which permits civil marriage between persons of the same sex and which he has received for enactment.
The full text of the Decree reads as follows:
The present Law permits civil marriage between persons of the same sex.
Amendments to the marriage regime
Articles 1577, 1591 and 1690 of the Civil Code now read as follows:
Marriage is the 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 present Code.
The contract by which, in the form of betrothals, promises of marriage or any other format, two persons undertake to enter into matrimony does not give the right to require the marriage to take place, or, in the event of non-fulfilment, to demand compensations other than those provided for in Article 1594, even when they result from a penalty clause.
1 – Both spouses possess the legitimacy to contract debts without the other’s consent.
2 - …………………………………………………………………’.
1 – The amendments made by the present Law do not imply that adoption in any of its formats by persons who are married to a spouse of the same sex are legally admissible.
2 – No legal provision with regard to adoption-related matters may be interpreted in such a way as to contradict the provisions of the previous paragraph.
Article 1628(e) of the Civil Code is hereby repealed.
Without prejudice to the provisions of Article 3, all the legal provisions with regard to marriage and their effects must be interpreted in the light of the present Law, regardless of the spouses’ gender.”
2. The request is accompanied by a legal opinion and offers the following grounds:
The object of the present request for a review of constitutionality is the norms contained in Article 1, in Article 2 to the extent that it amends the text of Articles 1577, 1591 and 1690(1) of the Civil Code, in Article 4 and in Article 5 of Decree of the Assembly of the Republic no. 9/XI. It is limited to these norms and only these norms.
First of all, it is important to emphasise that the passage of the normative provisions in relation to which this request for a prior consideration of their constitutionality has been made did not result from a constitutional requirement for equality, given that, as the Constitutional Court has already had the opportunity to conclude in Ruling no. 359/2009, the current text of the norm contained in Article 1577 of the Civil Code is not in breach of Article 13(2) of the Constitution.
If perchance one were to conclude that a constitutional requirement to legislate does result from the principle of equality, then one would be obliged to include in the law a same-sex marriage regime that was in every way identical to the regime governing marriage between persons of different sexes, thereby precluding any differentiating regime or legally distinct solutions.
This option to differentiate has been taken in the majority of states whose legal culture Portugal shares, and some of them have adopted different names and differentiated regimes.
What is more, German constitutional jurisprudence has considered that the option for registered civil partnerships is itself derived from the principle of equality: in the presence of different realities, it would be important to enshrine different regimes – marriage for persons of different sexes, and registered civil partnership for persons of the same sex.
Indeed, it is possible to use the principle of equality as an argument in favour of the unconstitutionality of the norms that form the object of the present request. The whole issue lies in knowing whether, when our legislators treat substantially different realities in the same way, they are not in breach of an obligation to differentiate that is derived from the Constitution.
We thus conclude that, according to the Portuguese constitutional jurisprudence set out in Ruling no. 359/2009, the Constitution does not require the law to enshrine same-sex marriage and it is legitimate to either simply prohibit it, or to provide for differentiated regimes – of which the German regime is one example among many.
Any other solution would constitute an unacceptable conditioning of the legislator’s freedom to shape the law, inasmuch as it would not only require broadening the civil marriage regime to encompass persons of the same sex, but would do so in every aspect of its scope, with its whole range of rights and obligations.
What is more, for us to conclude that in this domain there is a requirement imposed by Article 13(2) of the Constitution, it would first be necessary to make the constitutional concept of ‘sexual orientation’ more precise. The fact is that only this added precision would enable us to know with certainty whether the configuration which Decree no. 9/XI has now given to the ‘institute’ of marriage may not perhaps imply a breach of the principle of equality, in that it does not grant equal treatment to other possible forms of sexual orientation; just as one might always question the constitutional legitimacy of Article 3 of the said Decree, which appears to preclude the possibility of adoption by a person who is married to a spouse of the same sex.
Indeed, the differentiation introduced in the aforementioned Article 3 of the Decree corresponds to the legislature’s recognition of the fact that the realities in question are substantially distinct, wherefore the Constitution permits – or even calls for – a differentiated treatment.
This need to make the concept of ‘sexual orientation’ more precise is even clearer to the extent that the literal wording of the regime set out in Article 1577 and other provisions of the Civil Code requires that the betrothed couple be of different sexes, but does not specify a sexual orientation. It is thus essential to know what ‘sexual orientation’ consists of for the purposes of the provisions of Article 13(2) of the Constitution.
Having thus excluded the existence of a constitutional requirement to legislate in the way that Decree no. 9/XI does, we are now faced with the question of knowing whether the norms that are included in the object of the present request comply with the constitutional norm contained in Article 36(1), which states that: ‘Everyone has the right to form a family and to marry under conditions of full equality’.
By passing Decree no. 9/XI, the Assembly of the Republic gave Article 1577 of the Civil Code a new text. Under the heading ‘Notion of marriage’, the latter says that ‘Marriage is the 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 present Code’.
The legislature has done away with the parenthetic interpolation ‘persons of different sexes’ and has replaced it with the expression ‘two persons’. This implies a significant change in the defining elements of the concept of marriage that is adopted in the Civil Code, which are: (a) entry into a contract; (b) between persons of different sexes; (c) who wish to form a family; (d) by fully sharing their lives.
It is thus necessary to ask whether the change which our legislators now want to make in our legal order is in conformity with the constitutional concept of marriage – and consequently with the constitutional concept of family – adopted in Article 36(1) of the Constitution.
It is also necessary to know whether this change complies with the concept of marriage adopted in the Universal Declaration of Human Rights, whose Article 16(1) states the following: ‘Men and women of full age … have the right to marry and to found a family.’
Given that this reference to the gender of the holders of the right is unique in the Universal Declaration, we must inevitably conclude that, in the light of the latter text, the concept of marriage must be interpreted as concerning a union between a man and a woman.
Now, given that Article 16(2) of the Portuguese Constitutions states that ‘The precepts which the Constitution and the law lay down in relation to fundamental rights must be interpreted and completed in harmony with the Universal Declaration of Human Rights’, the constitutional precepts in relation to fundamental rights must not be interpreted solely on the basis of their literal text and the spirit of our Constitution. That which the Portuguese constitutional norm imposes on the interpreter is thus an interpretation in conformity with the Declaration.
Even if we recognise that in this domain the legislature possesses a freedom to shape the definition of the elements that characterise the legal concept of marriage, we must always bear in mind that this discretionary legislative ability cannot be exercised in such a way as to disfigure the constitutional notion of this ‘institute’.
The constitutional existence of marriage as an institution is expressly recognised in constitutional jurisprudence – particularly the above-mentioned Ruling no. 359/2009. In Ruling no. 590/2004 the Court went so far as to say that it is ‘a true norm of the type that contains an institutional guarantee’.
In the latter Ruling the Constitutional Court declared that:
‘To begin with, it is important to specify the meaning of the constitutional norm that has been invoked. Article 36 recognises and guarantees various rights with regard to the family, marriage and filiation. If we closely follow what J. J. Gomes Canotilho and Vital Moreira (…) teach us:
These rights are of four kinds: a) a person’s right to form a family and to marry (paras.  and ); b) spouses’ rights in and outside the family (para. ); c) parents’ rights with regard to their children (paras.  in fine, and  and ); d) children’s rights (para.  and the second part of para. ).
Of particular interest to us are the rights mentioned under a). On the subject of the right to marry, it is possible to say that it entails two dimensions: on the one hand it enshrines a fundamental right; on the other a true norm of the type that contains an institutional guarantee. As Pereira Coelho and Guilherme Oliveira (Curso de Direito da Família, Vol. I, 2nd edition, Coimbra Editora, 2001, p. 137) explain:
It is worth noting (...) the question of whether the second part of Article 36(1) only grants a fundamental right to enter into matrimony, or, more than that, is a norm of the type that contains an institutional guarantee. Although the Constitution does not explicitly formulate a principle of the ‘protection of marriage’ (Article 67 only protects the family), we have been of the opinion that the institution of marriage is constitutionally guaranteed, inasmuch as it would not make sense for the Constitution to grant the right to enter into matrimony and simultaneously allow the legislator to do away with the institution or disfigure its ‘essential core’.
[…) What the Constitution does guarantee is the individual freedom to form a family and to enter into matrimony, together with the existence of the legal format of marriage. In other words the norm that has been invoked as a parameter only requires that the state must guarantee the existence of the legal ‘institute’ of marriage and at the same time refrain from any forms of behaviour that prevent citizens from exercising the aforementioned rights or make it difficult for them to do so.’
Regardless of the nature of the protection the Constitution affords to marriage, it is thus important to determine the minimum content of the constitutional concept of marriage.
In truth, the malleability of constitutional concepts cannot be unrestricted and they must possess limits derived from the semantic and institutional notion which the Constitution adopted, failing which the normative strength of the constitutional text might be irremediably undermined.
So it is unlikely to be constitutionally permissible for the legislator, when it uses its freedom to shape legislation with regard to an ‘open’ concept, to do away with, change or bring new elements into that concept in such a way as to decharacterise that part of its content that represents its essential core. As the Court made very clear in Ruling no. 590/2004, the fact is that it is not enough to say that in this domain the legislator enjoys a broad leeway to shape legislation. It is necessary to explicitly state the meaning of and the limits on that freedom to shape, failing which its exercise may impinge on the scope of the institutional guarantee contained in Article 36(1) of the Constitution. It is precisely this explicit statement of the meaning of and limits on the legislator’s freedom to shape legislation in this domain that the present request is asking the Constitutional Court to make.
The fact is that the legislator’s freedom to shape legislation cannot allow the disfigurement of the constitutional concept of marriage, nor can it constitute a ‘blank cheque’ in the legislator’s name that enables it to amputate any of the concept’s essential characteristics.
That which the present case is really about is not a mere vocabulary or terminological amendment, but the elimination of one of the elements of the ‘institute’ of marriage – something that would always require the Constitutional Court to determine which of the characteristics that are defined in Article 1577 of the Civil Code can be done away with without disfiguring the ‘institute’ in question. This is what the author of the present request is asking the Court to determine.
Having said all this, the Constitution provides an adequate framework for the notion of marriage, within the context of the family, which binds its interpreter when he makes an interpretation that takes account of current realities but is also systematic, the result of which cannot set aside the literal text of the norm contained in Article 36 to an absolute extent.
This is the case of the provisions of the constitutional norms contained in Article 67(1), Article 68(1) to (4) and Article 71(2). In all of them the reference to the family is associated with filiation, the role of which is seen as central to the family institution as it is enshrined in the Constitution. Of particular importance due to its preceptive content is the safeguard which Article 36 offers to this institution.
Naturally this does not mean that the Constitution establishes a necessary link between marriage and filiation. The current legal regime governing marriage denies this. However, it is an inescapable fact that the Constitution does protect the institution of marriage in a very specific context.
At the same time it is undeniable that the constitutional concept of marriage has impregnated the Portuguese legal order with its radiating strength.
This impregnation can be seen in Article 1577 of the Civil Code; in Articles 1601 to 1604, on disqualifications from matrimony, especially the absolute and relative nullifying disqualifications, under which the marriage of persons to whom they apply is precluded by, among other things, the existence of an earlier, undissolved marriage, a blood relationship in the direct ascending or descending line or the second degree of the collateral line; and in the criminalisation of bigamy, which is provided for and punished by Article 247 of the Penal Code.
In those Articles our legislators have made it clear what the essential characteristics of marriage are in the light of the Portuguese legal order, and they could not have done this without constitutional support.
Given that there is no express constitutional definition of the concept of marriage, we are forced to conclude that the Constitution adopted the ‘historical concept of marriage as a union between two persons of different sexes’ (J. J. Gomes Canotilho and Vital Moreira, Constituição da República Portuguesa Anotada, Vol. I, 4th edition, 2007, p. 568), which is to say that it outlined the concept as one which requires the differentiation of the sex of the betrothed couple, but says nothing about their sexual orientation.
Whether or not one is able to determine the source or sources from which the Constitution drew the concept of marriage, and setting aside even the question of whether the concept in question was pre- or metalegal, the Constitutional Court is thus faced with the question of whether or not the differentiation of the sexes of the betrothed couple corresponds to the concept of marriage – and consequently that of the family – that has been adopted in the Constitution since its original version.
As we would do well to see, this does not mean arguing that the constitutional concept of marriage is ‘cast in stone’, or necessarily has to be the same as the concept of marriage that was adopted in the Civil Code – something that would, if taken to the extreme, make all and any changes to the Code unconstitutional.
What we do need to clarify is, in the light of the Constitution, which element or elements of the concept of marriage are included – and must be included – in the notion of marriage.
This also leads on to the question, which is now placed before the Constitutional Court, of the content and scope of the constitutional concept of family, which is also present in Article 36(1) – a question that involves asking, this time from another point of view, whether the option which our legislators took when they produced the new text of Article 1577 of the Civil Code is in conformity with the Constitution.
The above remarks apply, mutatis mutandis, to the other norms that are included in the object of the request – i.e. Article 1, Article 2 – the latter to the extent that it gives Article 1591 of the Civil Code a new text – Article 4 and Article 5 of Decree no 9/XI, without prejudice to the fact that we recognise the legislator’s leeway to shape legislation when it modulates the degree to which marriage between persons of the same sex is of less value (Article 1628[e] of the Civil Code), and also without prejudice to recognition of the merely accessory, instrumental and interpretative nature of Article 5 of Decree no. 9/XI.
We must thus conclude that there are substantiated grounds for doubts as to the material constitutionality of the norms that form the object of the present request, due to a breach of the essential content of the institutional guarantee included in the concept of marriage adopted by the Constitution.
In the light of all the above and under the terms of Article 278(1) of the Constitution of the Republic, as well as those of Article 51(1) and Article 57(1) of Law no. 28/82 of 15 November 1982, I hereby ask the Court to conduct a prior review of the constitutionality of the norms contained in Articles 1, 2 to the extent that it amends the text of Articles 1577, 1591 and 1690(1) of the Civil Code, 4 and 5 of Decree no. 9/XI, due to a breach of Article 36(1) of the Constitution."
3. When notified of the opportunity to pronounce himself on the above request under the terms of Article 54 of the LTC, the President of the Assembly of the Republic said that he had nothing to add to the case file.
II. Grounds for decision
4. While the Decree that has been sent to the Presidency of the Republic for enactment contains a precept concerning adoption (Article 3 of the Decree), and the grounds for the request (see point 14 of the request) say that it may be unconstitutional, the petitioner nonetheless emphasises that it is only the other norms in the Decree that are the object of the request for a prior review (points 6 and 42). Article 3 of Decree of the Assembly of the Republic no. 9/XI is thus outside the object of the Court’s consideration, as is the final part of Article 5, which constitutes an exception to the provisions of the other precept.
On the other hand, although the object of the prior review request comprises several norms, only one of them (or only one normative effect) is really under discussion: Article 1, when it permits same-sex marriage. The rest is the reflection of this legislative option in the listed Civil Code precepts, and a norm that is designed to complete the legal order by requiring that all legal provisions with regard to marriage and its effect (except those concerning the matter of adoption) be interpreted in the light of the new normative solution.
It is also important to note that, bearing in mind the Law governing Religious Freedom (Law no. 16/2001 of 22 June 2001) and the amendments to the Civil Registry Code made by Executive Law no. 324/2007 of 28 September 2007, the object of the new regulation is ‘civil marriage’, and not Catholic marriage or marriage conducted under the rites of any other religion. It is thus not important here to characterise our matrimonial system in terms of the question of whether Portuguese law permits Catholic marriage as another form of entering into matrimony, or as more than that – as a different ‘institute’ (on this question, see the contrasting positions taken by Francisco Pereira Coelho and Guilherme de Oliveira, Curso de Direito de Família, Vol. I, 4th ed., pp. 186 et seq., and Gomes Canotilho and Vital Moreira, Constituição da República Portuguesa Anotada, 4th ed., p. 563).
5. The request refers to a hypothetical breach of the principle of equality that could result from the configuration which is now being imposed on the ‘institute’ of marriage due to the fact that Decree 9/XI contemplates homosexual relationships and does not grant equal treatment to other possible forms of sexual orientation. Inasmuch as the request does not develop this line of argument, and given that we are unable to see which concrete forms of sexual orientation its author has in mind and might take on a degree of importance in the public field that would justify their consideration by the legislature, the Court is not in a position to consider this argument. The key point of the legislative change and the one which justifies the questioning of its constitutionality is whether the spouses are of the same or different sexes. This question of constitutionality is indifferent to all the differences and variations that may exist in manifestations of hetero- and homosexuality and their respective legal consequences; the only issue of interest to us is whether two persons of the same sex can marry one another.
At the same time, it is not necessary to explicitly state or give a more precise idea of the concept of ‘sexual orientation’, particularly as a ‘suspect category’ for the purposes of the prohibition contained in Article 13(2) of the Constitution. The sexual orientation that is of import within the context of the norm in question is the inclination towards a union with a person of the same biological or genetic sex. Within the context of the normative option before us, the morphological, psychological and social component of sexual orientation and of the consequent legal determination of gender diminishes in terms of its problematical importance. For the purpose of the application of the norms in question (i.e. the purpose of the existence or validity of marriages, and only this aspect – but then this is the only one that is important here), it is of no interest to know how one must address situations involving transsexuality, particularly which of the different identities must be taken into account in cases in which there is a mismatch between the genetic identity and the gender on the person’s official records, because that determination of the sex of the betrothed couple ceases to have any influence over the right to enter into a given marriage. However, we should note that in the opinion of anyone who considers that it is possible to secure legal recognition of the new gender identity following a medical/surgical sex-change intervention, with that recognition’s inherent consequences, today’s law can already be said to consent to marriage between persons of the same biological sex, except if – for the same purpose – one were to bring in a restriction on the significance of sex changes (see the European Court of Human Rights ruling in Christine Goodwin v. the United Kingdom).
6. The legislative change that has been submitted for review is going to immediately affect the concept of marriage as currently defined in Article 1577 of the Civil Code: “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”. One may infer from other provisions of the Code that “fully sharing their lives” is characterised by the spouses reciprocally binding themselves to the duties of respect, faithfulness, cohabitation, cooperation and assistance (Article 1672 of the Civil Code), by the exclusivity of that shared life (Article 1601[c] of the Civil Code), and by the tendency or presumption that it will be of a perpetual nature, without prejudice to the possibility of divorce (Articles 1618 and 1773 of the Civil Code).
In the current legal regime the fact that the betrothed couple are (and consequently the married couple will be) of different sexes is a necessary presupposition of and an essential requisite for marriage. If the spouses are of the same sex, the marriage does not exist in legal terms (Article 1628[e] of the Civil Code). It is this characteristic of the difference between the spouses’ sexes, the insuperable requirement that matrimony be entered into by a man and a woman, which has always been in effect in both the Portuguese legal order and – with a few recent departures from the rule that we will mention later – in virtually all the legal orders in the same civilisational area, which the legislative initiative that is being questioned before us has done away with.
In the light of the Constitution of the Portuguese Republic, it is possible to envision three possible alternative responses to the question of whether two persons of the same sex can enter into matrimony with one another, all of which have their supporters among the legal theorists (for a list of the different Portuguese authors who defend each of the three, see Duarte Santos, Mudam-se os Tempos, Mudam-se os Casamentos, O casamento entre Pessoas do mesmo Sexo e o Direito Português, pp. 283 et seq.): a) same-sex marriage is a constitutional requirement; b) same-sex marriage is prohibited by the Constitution; c) same-sex marriage can be recognised by the ordinary legislator.
The request argues for the second of these views, and says that the first hypothesis is precluded by the jurisprudence set out in Ruling no. 359/2009 (available at www.tribunalconstitucional.pt), which it interprets to mean that the Constitution does not require the law to incorporate same-sex marriage, and that both prohibition of the latter and the provision for differentiated regimes are legitimate.
It is only the grounds for this understanding that Article 36 of the Constitution does not allow the ordinary legislator to include the possibility of marriage between two persons of the same sex in the law that it is important for us to gauge, so that we can then confront the norms that form the object of the request with this interpretation, if we decide to uphold it.
7. The questions of the forms and scope of the protection, recognition and legitimation of the situations in which persons of the same sex live together have burst onto the scene in the last three or four decades. They are becoming increasingly pressing in both the Portuguese legal order and other places within the same civilisational space and legal culture, as well as in supranational instances to which Portugal belongs, and have encountered variant and alternative responses that it is useful to summarise at this point. The fact is that there can be no doubt that in matters which are linked to human problems as universal as those related to the desire for legal protection of the homosexual relationship, it may be of interest to know what is happening within the scope of other legal experiences and (without losing anything in terms of the significance of the autonomy of each legal system) perhaps draw some conclusions therefrom, especially when it is possible to deduce common legal principles from such experiences (on the importance of comparative law in the field of constitutional jurisdiction, see Romano Orrú, La giustizia costituzionale in azione e il paradigma comparato: l' esperienza portoghese, Naples, 2006).
In this respect it is essentially important to recall the Court’s words in Ruling no. 359/2009, in which for the first time it faced the constitutional question of same-sex marriages, albeit with regard to the opposite normative solution to the one that is now before us.
8. The Parliamentary Assembly of the Council of Europe was a pioneer in the defence of the legal situation of homosexuals: in Resolution 756 (1981) of 1 October 1981 it invited the World Health Organisation remove homosexuality from its catalogue of illnesses; while in Recommendation 924 (1981), which it issued on the same date, it recommended to the Committee of Ministers that the latter urge Member States where consensual homosexual acts between adults were subject to criminal prosecution to abolish those laws and practices and to apply the same minimum age of consent to both homosexual and heterosexual sexual acts, and that the Committee invite the Member States: to order the destruction of any existing special files on homosexuals and abolish the practice of compiling them; to ensure equal treatment for homosexuals with regard to employment, pay and job security, particularly in the public sector; to ask for the cessation of all compulsory medical action or research designed to alter the sexual orientation of adults; to ensure that the custody, visiting rights and accommodation of children by their parents not be restricted because of the homosexual tendencies of one of the parents; to call for prison rights and to ask other authorities to be vigilant against the risk of rape, acts of violence and sexual offences in prisons (see Resolution 756 , and Recommendation 924 , which are available, along with the other texts referred to below, at http://assembly.coe.int/).
The Parliamentary Assembly issued two important Recommendations that were directly related to same-sex partnerships: Recommendation 1470 (2000) of 30 June 2000, and Recommendation 1974 (2000) of 26 September 2000. Concerned about the fact that the immigration policies of the majority of Member States of the Council of Europe discriminated against lesbians and gays, in Recommendation 1470 it recommended that the Committee of Ministers urge the Member States: “to review their policies in the field of social rights and protection of migrants in order to ensure that homosexual partnerships and families are treated on the same basis as heterosexual partnerships and families; to take such measures as are necessary to ensure that bi-national lesbian and gay couples are accorded the same residence rights as bi-national heterosexual couples; to encourage the establishment of non-governmental organisations to help homosexual refugees, migrants and bi-national couples to defend their rights (...)”; in Recommendation 1974 (2000) it recommended that the Committee of Ministers “add sexual orientation to the grounds for discrimination prohibited by the European Convention on Human Rights, as requested in the Assembly’s Opinion no. 216 (2000) (...) and call upon Member States: to include sexual orientation among the prohibited grounds for discrimination in their national legislation; (...) to adopt legislation which makes provision for registered partnerships (...)” In response, on 19 September 2001 the Committee of Ministers said that it opposed the inclusion of the expression ‘sexual orientation’ in the ECHR, but accepted all the other measures.
More recently, in 2007, in Resolution 1547 (2007) of 18 April 2007, on “The state of human rights and democracy in Europe”, the Parliamentary Assembly of the Council of Europe called on Member States to engage in an effective fight against all forms of discrimination based on gender or sexual orientation, and to pass anti-discriminatory legislation in this respect, particularly in terms of the legal recognition of same-sex partnerships.
9. Article 12 of the European Convention on Human Rights of 4 April 1950 says: “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 that: “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”.
The European Court of Human Rights has issued copious jurisprudence on the subject of the removal of discriminations based on sexual orientation: in Dudgeon v. United Kingdom, Judgement of 22.10.1981, Norris v. Ireland, Judgement of 26.10.1988, Modinos v. Cyprus, Judgement of 22.04.1993, and A.D.T. v. United Kingdom, Judgement of 31.07.2000 (these and the other cases cited below are all available at: http://cmiskp.echr.coe.int/), the Court considered that penalising homosexual practices between adults to which the latter freely consent is in violation of both the right to private life enshrined in Article 8 of the ECHR and the principle of non-discrimination provided for in Article 14 of the same Convention (in A.D.T. v. United Kingdom, the ECtHR declined to hear the issue of a breach of Article 14, and restricted its analysis to Article 8); in Smith and Grady v. United Kingdom and Lustig-Preen and Beckett v. United Kingdom, both Judgements of 27.09.1999, the Court held that the right to private life set out in Article 8 of the ECHR was violated by a number of British military legal code norms that penalised homosexual practices between members of the armed forces; in Salgueiro da Silva Mouta v. Portugal, Judgement of 21.12.1999, the ECtHR declared that the refusal by a Portuguese court to grant custody of a daughter to a homosexual father, because of his homosexuality, was in breach of both the rights to private and family life (see Article 8 of the ECHR) and the principle of equality and non-discrimination (see Article 14 of the ECHR); in L. and V. v. Austria and S. and L. v. Austria, both Judgements of 09.01.2003, the Court recognised that there was no objective and rational justification for continuing to impose a higher age of consent for homosexual acts than for heterosexual ones, and held that the relevant convictions under §209 of the Austrian Penal Code were in violation of Article 14 of the ECHR; in Baczkowski and others v. Poland, Judgement of 03.05.2007, on the subject of the denial by the Warsaw municipal authorities of requests to authorise LGBT demonstrations, and in the light of the circumstances of the concrete case before it, the Court held that there was a situation of discrimination based on sexual orientation (see Article 14 of the ECHR), as well as a breach of the freedoms to demonstrate and to assemble that are provided for in Article 11 of the Convention; in E.B. v. France, Judgement of 22.01.2008, the Court decided that the refusal by the authorities of a Member State (in the concrete case in question, France) to accept an application by a homosexual (in this case, a woman) to adopt a child as a single parent, because she was homosexual, entailed discrimination based on sexual orientation (see Articles 8 and 14 of the ECHR).
The right to marry and to found a family is recognised in Article 12 of the ECHR, and the European Court of Human Rights has interpreted marriage as being a union between a man and a woman, although this definition has not always been constant.
In Rees v. United Kingdom, Judgement of 10 October 1986, the Court said that: “the right to marry guaranteed by Article 12 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 para. 49). This understanding was then confirmed in Cossey v. United Kingdom, Judgement of 27 September 1990 (see para. 43), and Sheffield and Horsham v. United Kingdom, Judgement of 30 July 1998 (see para. 60).
This jurisprudence was subsequently the object of a distinguo with regard to transsexuality, with Christine Goodwin v. United Kingdom, Judgement of 11 July 2002. In this decision the ECtHR no longer referred to the difference in biological sex in order to define marriage. It said the following: “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 para. 98). It also stated 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 para. 100).
On the other hand, in the decision to deny the application in Mata Estevez v. Spain, which it handed down 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 application no. 9369/81, decision of 3 May 1983, DR 32, p. 220, and application no. 11716/85, decision of 14 May 1986, DR 47, p. 274). The Court considers that, despite the growing tendency in a number of European States towards 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, the Cossey v. the United Kingdom judgment of 27 September 1990, Series A no. 184, p. 16, § 40, and, a contrario, Smith 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, Judgement of 24 July 2003, the Court held 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 para. 41).
10. The first time a Community organ pronounced itself on the rights of homosexuals took the form of the Resolution of the European Parliament of 13 March 1984 on sex discrimination at the workplace, in which the Parliament displayed concerns that were identical to those which the Parliamentary Assembly of the Council of Europe referred to in Recommendation 924 (1981) (OJ C 104 of 16/04/1984, pp. 6 et seq.).
In 1993, in a Resolution on respect for human rights in the European Community, the European Parliament expressed its concern in the face of forms of discrimination or manifestations of marginalisation targeted at persons who display forms of difference, especially those who belong to a sexual minority (OJ C 115 of 26/04/1993, pp. 178 et seq.)
In 1994, in the wake of a Report on equal rights for men and women in the European Community (Roth Report) drawn up by the European Parliament’s Committee on Civil Liberties and Internal Affairs, the Parliament passed the Resolution of 8 February 1994, in which it advocated equal treatment for all citizens, regardless of their sexual orientation. Considering that it was incumbent on the European Community to promote that equality, in the same document the European Parliament urged the Member States to act to put an end to discriminatory forms of treatment and promote the integration of homosexual men and women into society. It went on to call on the Commission of the European Communities to present a draft recommendation that would at least put an end to the “barring of (…) homosexual couples from marriage or from an equivalent legal framework, and (…) guarantee the full rights and benefits of marriage, allowing the registration of partnerships” and to “any restrictions on the rights of lesbians and homosexuals to be parents or to adopt or foster children” (OJ C 61 of 28/02/1994, pp. 40 et seq.)
In 1997, the European Parliament passed a new Resolution, in which it continued to promote the idea that: “the absence of legal recognition for same-sex couples throughout the Union is tantamount to a form of discrimination, in particular as regards freedom of movement and family reunification” (OJ C 132 of 28/04/1997, pp. 31 et seq., point 137).
A number of other Resolutions are also worthy of note: that of 1998, in which the European Parliament urged all the Member States to recognise the legality of the rights of homosexuals, particularly – in the case of the countries in which they had not already been adopted – by introducing civil partnership contracts, with a view to doing away with all the forms of discrimination of which homosexuals were still victims, especially with regard to tax law, the regimes governing property, social rights, etc. (see Resolution on respect for human rights in the European Union (1996) of 17/02/1998, OJ C 80 of 16/03/1998, p. 50, points 67-68); that of 2000, in which it called on the Member States to adopt policies that would give heterosexual and homosexual unions equal status, particularly by guaranteeing single-parent families, unmarried couples and same-sex couples rights equal to those enjoyed by traditional couples and families, especially as regards tax law, pecuniary rights and social rights, and exhorted all the States in which that legal recognition did not already exist to amend their legislation in such a way as to legally recognise unions without matrimonial bonds, regardless of the sex of the persons involved, saying that it was necessary to rapidly make progress with mutual recognition within the European Union of these different legal forms of de facto and matrimonial unions between persons of the same sex (see Resolution on respect for human rights in the European Union (1998-1999) of 16/03/2000, in OJ C 377 of 29/12/2000, pp. 344 et seq., points 56-57); and those of 2001 and 2003, on the situation of the fundamental rights in the European Union (in OJ C 65 E of 14/03/2002, and OJ C 38 E of 12/02/2004), in which it recommended that the Member States alter their legislation with a view to recognising de facto unions between persons of both the same sex and different sexes and attributing them equal rights. (For a more detailed description of this subject, see, among others, Duarte Santos, op. cit., pp. 99 to 121).
11. The following decisions by the Court of Justice are also useful for an overall understanding of the problem, despite the fact that family law does not fall within the competence of the European Union:
In its Ruling of 17 February 1998 (Case C-249/96, Lisa Jacqueline Grant v. South-West Trains Ltd.), the Court 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 CJEC considered 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, following the entry into force of the Treaty of Amsterdam and under the terms of Article 6-A of the EC Treaty, the Council can take the measures needed to eliminate different forms of discrimination and namely those based on sexual orientation.
In its Ruling of 31 May 2001 (in the Joined Cases C-122/99 P and C-125/99 P: Kingdom of Sweden and others v. Council of the European Union), the Court 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 of the circumstance that the partner with whom she was living was of the same sex, constituted a sex-based discrimination that breached the terms of Article 119 of the Treaty. The Court said that: “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 D (the appellant) under Swedish law, is comparable to that of a married official”. For the purposes of this analysis the Court felt that as an organ of the “Community judicature”, it could not disregard “the views prevailing within the Community as a whole”. Given the heterogeneity of the various legislations and the absence of a general view that marriage is equivalent to other forms of legal union, the Court held: “that the plea relating to infringement of the principle of equal treatment and discrimination on grounds of sex must be rejected”.
In the Ruling it handed down on 1 April 2008 in Tadao Maruko v. Versorgungsanstalt der deutschen Bühnen (Case C-267/06), with regard to a referral for a preliminary ruling from the Bayerisches Verwaltungsgericht München (the Bavarian Administrative Court in Munich) in relation to the refusal by a pension institution to award a subsistence pension to the surviving partner of a registered partnership that had been formed under the terms of the Lebenspartnerschaftgesetz (LPartG) of 16 February 2001, on the grounds of the provisions of the collective labour agreement applicable to German theatres, under which only a surviving spouse is entitled to that benefit, the Court of Justice held that the combined provisions of Articles 1 and 2 of Council Directive 2000/78/EC of 27/11/2000 – which established a general framework of equal treatment in employment and occupation (OJ L 303 of 02/12/2000, pp. 16 et seq.) – are in opposition to a legislation under which, following the death of his/her partner, the surviving partner does not receive a subsistence allowance equal to that awarded to a surviving spouse, despite the fact that under the applicable national law a de facto partnership places persons of the same sex in a situation that is comparable to that of spouses where the aforesaid subsistence allowance is concerned. However, in harmony with earlier decisions (see Rulings Grant and D and Kingdom of Sweden), the Court held that it falls to the referring jurisdictional organ to verify whether a surviving partner is in a situation that is comparable to that of a spouse who benefits from the subsistence allowance provided for under the socio-professional pension regime managed by the pension institution in question.
12. With regard to European Union law, it is also important to bear in mind:
– That Article 19(1) of the Treaty on the Functioning of the European Union states that: “Without prejudice to the other provisions of the Treaties and within the limits of the powers conferred by them upon the Union, the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation”.
– That under the heading “Right to marry and right to found a family”, Article 9 of the Charter of Fundamental Rights of the European Union (CFREU, published with the amendments made on 12/12/2007 in OJ C 303 of 14/12/2007) states that: “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”.
What is more, Article 21(1) of the Charter prohibits 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”.
13. Various European countries have adopted legislative measures that afford recognition and legal protection to same-sex unions or partnerships In some of these countries, this intervention took the form of the creation of a regime for “civil unions” between persons of the same sex, or registered life partnerships, which involve recognition of a large proportion of the rights and duties applicable to marriage. In others, the concept of marriage itself was redefined in such a way as to encompass unions or partnerships between persons of the same sex – the case of Holland in 2001, Belgium in 2003, Spain in 2005, and more recently, Norway and Sweden.
13. 1. Countries with a registered civil union or partnership
The first country to include a regime providing for partnerships between persons of the same sex in its law, with effects that are substantially analogous to those of marriage, was Denmark, in 1989 (Lov om registeret partneska no. 372 of 07/06/1989).
The “Scandinavian model” – so-called because it was later adopted by other Nordic countries (Norway in 1993, Sweden in 1994, Iceland in 1996, and Finland in 2001) – reserves access to registered partnerships exclusively to homosexual couples.
It entails the creation of a legal regime which is specifically intended to regulate lasting partnerships between persons of the same sex, and which presents similarities to marriage, particularly with regard to requisites in terms of capacity and disqualifications, the bureaucratic details of the preliminary process, the requirement that the act be registered, the right to the partner’s name, provision for the obligation to pay living expenses, liability for debts incurred during the course of the relationship, the regime governing property, parental authority, the dissolution of the relationship in life, and inheritance rights, as well as matters concerning the right of residence and the acquisition of nationality, social security and labour rights, among others.
Germany does not permit same-sex marriages either. By enacting the Lebenspartnerschaftgesetz (LPartG) of 16 February 2001, it has adopted a registered partnership regime, which is only open to partnerships between two persons of the same sex and broadly matches the solutions adopted in the “Scandinavian model”. It should be noted that the LPartG was subjected to a review of its constitutionality on the grounds of a possible breach of both Article 6 § 1 of the German Constitution, which guarantees the right to form a family and enter into marriage, and the principle of equality. In a decision dated 17 July 2002, the German Federal Constitutional Court found that the Law was not unconstitutional, as we shall see in more detail below.
The United Kingdom also included the registered partnership format in its legal system, when Parliament passed the Civil Partnership Act (17 November 2004). Given the similarities to the marriage regime, this has already been described as “marriage in all but the name», and another author has said that there is no “legal difference between a civil partnership and marriage”, albeit when questioned about the nature of the “civil partnership”, another source emphasised that marriage between persons of the same sex is a “contradiction in terms” (for these statements and their authors, see Stephen Cretney, Same Sex Relationships: From ‘Odious Crime’ to ‘Gay Marriage, pp. 16 and 19).
With the Law entitled Loi fédérale sur le partenariat enregistré entre personnes du même sexe (LPart)(Federal law on the registered partnership between persons of the same sex), which was passed by both Chambers of the Federal Parliament on 18 June 2004, was ratified by national referendum on 5 June 2005, and has been in force since 1 January 2007, Switzerland created a status of their own for same-sex partnerships.
France adopted the Pacte Civil de Solidarité (PACS) by passing Law no. 99-944 of 15 November 1999. This “Civil Solidarity Pact” takes the form of a contract that is essentially regulated in Articles 515-1 to 515-7 of Title XII of Book I of the French Civil Code. The regime is based on specific contractual rules that seek to establish a form of “living together on the margins of marriage”, which covers both homosexual and heterosexual unions (see Article 515-1). The PACS is designed to accord the partners a status which, while it cannot be confused with that of marriage, is intended to provide them with some of the rights derived from a matrimonial union. In order for their ‘pact’ to have legal effects and make it opposable to third parties, the parties must go to the secretariat of their local tribunal d’instance and declare their joint wish to enter into a PACS, whereupon the court official will record it.
13.2. Marriage between persons of the same sex
Holland was the first country to recognise same-sex marriage. It did so in a Law of 21 December 2000, which entered into force on 1 April 2001. The Dutch Civil Code thenceforth said that “marriage may be entered into by two persons of different sexes or of the same sex”. The Bill that led to the new Law justified this change on the basis of the principle of equal treatment, saying that marriage is a symbol with a special significance, and is a fundamental way for two people to commit to one another.
Belgium, whose legal system already included the ‘legal cohabitation’ format, opened the way to same-sex marriage in a Law of 13 February 2003. The new Article 143(1) of the Civil Code reads as follows: “Two persons of different sexes or the same sex may enter into a contract of marriage”. The norms concerning the essential terms and conditions, form, dissolution, rights and obligations became applicable to all marriages, regardless of the spouses’ sexes. In the exposé of reasons that accompanied the bill it sent to the Chamber of Deputies, the Belgian government said that it felt that there was insufficient justification for preventing homosexual couples from gaining access to an ‘institute’ which entails a whole symbolism that is necessarily reflected in the attribution of a set of rights and duties and in a form of social recognition that is not compatible with the exclusion of a given group.
In the case of Spain, the admissibility of same-sex marriage results from Law no. 13/2005 of 1 July 2005, which modified the Civil Code with regard to the right to enter into matrimony, by including the principle that the requisites for marriage and the effects of marriage are the same whether the parties are of the same or different sexes.
Finally, it is also important to note that in 2009 Norway and Sweden, whose laws already recognised registered civil partnerships, allowed marriage between persons of the same sex.
(For more details on the regimes that the European countries have adopted in this field, with references to places where they are published and can be consulted, see: Duarte Santos, op. cit. pp. 123-176; and also “Casamento e Outras Formas de Vida em Comum entre Pessoas do mesmo Sexo” a Report drawn up by the Assembly of the Republic’s Legislative Information Division in May 2007, in Julgar, no. 4, 2008, pp. 223 et seq.).
14. In other legal systems, court decisions have been protagonists in the drive towards the institutionalisation of partnerships between persons of the same sex. This has been the case in the USA, Canada and South Africa, in a process that was described in more detail in Ruling no. 359/2009.
Among the jurisprudence of the courts of the United States of America – a country in which it is the different States that have the competence to define the requisites for marriage – it would seem opportune to highlight the following decisions, for the arguments they contain:
As early as 1993, the Supreme Court of Hawaii (Baher v. Levin) held that the State Constitution would only allow marriage to be limited to heterosexual couples if the State could demonstrate the existence of compelling interests that would justify excluding homosexuals. However, the State Constitution was then revised in such a way as to allow the ordinary legislature to reserve marriage to opposite-sex couples.
Subsequently, in a 1999 decision, the Supreme Court of Vermont (see Baker v. State, 20 December 1999) said that the principle of equality prohibited the exclusion of homosexuals from the benefits and protections associated with matrimony. It also held that the legal provisions governing marriage should remain in force for a reasonable period of time, in such a way as to enable the legislative authorities to adopt an appropriate regime. In the wake of this decision, the State Legislature passed a legislative act creating a civil partnership that provides same-sex couples with the same protection as that which marriage affords to opposite-sex ones.
On a different level, in 2003, in Goodridge v. Dept. of Public Health the Supreme Court of the State of Massachusetts ruled that the guarantees of equality and liberty protected by the State Constitution made marriage solely between a man and a woman unconstitutional, because there was no “rational basis” for retaining that provision. In a majority opinion subscribed by four of the seven Justices, the Court said that: “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”.
More recently, in the consolidated In re Marriage cases, which it decided on 15 May 2008, again by a small majority, for the second time in the USA (the first being the Goodridge case mentioned above) the Supreme Court of California recognised the constitutional right of homosexuals to marry. The question which the Supreme Court of California was called on to decide, in a State in which homosexuals are guaranteed essentially the same rights as marriage provides to heterosexuals, by means of a contract between persons of the same sex that is known as a “domestic partnership”, 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, the Court based itself on the one hand 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”. On the contrary, it now recognised that gay individuals had “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, recognize 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”.
Having said this, we should note that a state referendum held on 4 November 2008 approved “Proposition 8”, which added an amendment to the Constitution of the State of California enshrining the heterosexual nature of marriage.
And we must point out that while there are States that have passed legislation extending civil marriage to two persons of the same sex, there has also been a political reaction against the direction taken by this jurisprudential current of thought. This has occurred at both the federal level, as early as 1996, with the Defense of Marriage Act (DOMA), which sought to affirm the heterosexual nature of marriage and guarantee the States the freedom to regulate matrimony, and by means of changes to various State Constitutions themselves, in such a way as to prohibit both same-sex marriage and the recognition of such marriages when permitted in other States (see DUARTE SANTOS, op. cit., pp. 187-201).
In Canada, following a number of decisions by provincial courts, the government brought the question of extending civil marriage to persons of the same sex before the Supreme Court. In the decision it handed down on 9 December 2004 in Reference re Same-Sex Marriage, the Supreme Court of Canada held that extending the right to civil marriage to persons of the same sex was not only consistent with Section 15 of the Canadian Charter of Rights and Freedoms, but resulted directly from it. Referring to Hyde v. Hyde in 1866, according to which “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 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”.
Following this case, the Canadian Parliament passed the Civil Marriage Act (Royal Assent 20 July 2005), which redefined civil marriage such that it became “the lawful union of two persons to the exclusion of all others”.
15. Among our counterpart jurisdictions it is particularly worth mentioning the decision which the German Federal Constitutional Court handed down on 17 July 2002, on the constitutionality of the Lebenspartnerschaftgesetz, and Ruling no. 159/2004 of 20 October 2004, which the Belgian Cour d’arbitrage gave in relation to the constitutionality of a Law of 13 February 2003 that permitted same-sex marriage.
According to the Sentence of the German Constitutional Court, “The Basic Law itself contains no definition of marriage, but presupposes it as a special form of human cohabitation. The realisation of the constitutional protection of marriage therefore needs a legal provision that structures and restricts the form of partnership that enjoys the protection of the Constitution. Here, the legislature has considerable freedom of drafting in determining the form and content of marriage (...). The Basic Law guarantees the institution of marriage not in the abstract, but in the form that corresponds to current prevailing opinions, which are expressed definitively in the statutory provisions (...). However, in shaping marriage, the legislature must take into account the essential structural principles that follow from the application of Article 6(1) of the Basic Law (which states that: “Marriage and the family enjoy the special protection of the State order”) to marriage as it is actually encountered in connection with the nature of the fundamental right guaranteed as a freedom and in connection with other constitutional norms (...). Part of the content of marriage, as it has stood the test of time despite social change and the concomitant changes of its legal structure and as it has been shaped by the Basic Law, is that it is the union of one man with one woman to form a permanent partnership, based on a free decision and with the support of the state (...), in which man and woman are in an equal partnership with one another (...) and may decide freely on the organisation of their cohabitation (para. 87). At the same time, in this decision the Court says that one cannot infer from the special protection which the German Constitution affords to marriage that the latter must always be protected to a greater extent than other forms of living together (para. 99).
On the subject of the existence of a breach of the principle of equality because homosexual persons were only able to gain access to life partnerships, while marriage continued to be intended for heterosexuals, the Court concluded that there was no such breach. It said that when the Law provided for partnerships between persons of the same sex, it “does not associate rights and duties not with the sex of a person, but takes as its starting point the combination of sexes of a community of persons, and to this community of persons it offers access to the registered partnership. It then allocates rights and duties to the persons in this community. Just as marriage, with its restriction to a two-person relationship between man and woman, does not discriminate against same-sex couples on account of their gender, the civil partnership does not discriminate against heterosexual couples on account of their gender. Men and women are always treated equally. They may enter into marriage with a person of the opposite sex, but not with one of their own sex. They may enter into a civil partnership with a person of their own sex, but not with one of the other sex” (para. 106).
In the opinion of the German Court, the difference that makes it possible to distinguish in this way between homosexual and heterosexual persons with regard to the legal bonds they want to attach to their forms of cohabitation is as follows: “The difference, that children of both spouses can be born to a permanent two-person relationship between man and woman, but not to a same-sex partnership, justifies directing heterosexual couples to marriage if they wish to give their relationship a permanent legally binding form” (para. 109).
The Cour d’arbitrage pronounced itself in relation to the Law of 13 February 2003 that permitted same-sex marriages. In its Sentence it considered that, in the light of the view of marriage as the creation of a lasting sharing of their lives by two persons, “the difference between people who want to form a way of sharing their life with a person of the other sex on the one hand, and people who want to create such a form of cohabitation on the other, is not such as to exclude the possibility of marriage by the latter” (grounds B.4.7). However, it felt that the conventional provisions invoked by the appellant – namely Article 12 of the ECHR and Article 23 of the International Covenant on Civil and Political Rights – could not be interpreted in such a way as to oblige the party states to see “the fundamental sexual duality of human gender” as an essential aspect of their constitutional orders (grounds B.5.8) It said that nor could those provisions be interpreted “in order to prevent the states that are parties to the aforementioned Conventions from attributing the right which the provisions in question guarantee to people who want to exercise that right with persons of the same sex” (grounds B.6.4). However, the Cour d’arbitrage was of the opinion that there were no reasons that would make it possible to say that the protections afforded to the family might be considered to have been “weakened by the provisions that have been criticised, apart from anything else because the Law concerned does not make any material change to the legal provisions that govern the effects of the civil marriage of persons of different sexes” (grounds B.6.6).
Finally, it is important to note that the question of the constitutionality of marriage between persons of the same sex is currently pending before the Spanish and Italian Constitutional Courts. In the case of the former, the issue is the Law that permitted same-sex marriages; in that of the latter, the question involves the fact that such marriages are not allowed.
16. In Portugal, situations involving “de facto unions” between persons of the same sex received legal recognition and protection with the passage of Law no. 7/2001 of 11 May 2001, the purpose of which was to make de facto homosexual unions equivalent to de facto heterosexual unions. Law no. 7/2001 revoked Law no. 135/99 of 28 August 1999, which had defined de facto union as “the legal situation of persons of different sexes who have lived together de facto for more than two years”. The new Law made the legal protection afforded to persons who have lived in a de facto union for more than two years independent of their sexes. Law no. 7/2001 grants people who are living in a de facto union rights in regard to the home they live in together, labour relations in both the public and the private sectors, income tax, social security, protection in the event of work-related accidents, and pensions for exceptional and important services rendered to the country, whether they are of the same sex or different ones (Articles 3, 4 and 5).
We should nonetheless note two important differences. The first is that the right to adopt was extended to persons of different sexes who live in de facto unions, under terms and conditions that are analogous to those which the Civil Code lays down for spouses; while the members of de facto unions between persons of the same sex were excluded. The second is that members of a de facto homosexual union cannot resort to medically assisted procreation techniques (Article 6 of Law no. 32/2006 of 26 July 2006).
Other norms that grant rights or stipulate legal consequences as a result of situations in which there is a de facto union do so without distinction in terms of whether the members’ sexes are the same or different, and thus encompass homosexual couples. Without any attempt at providing an exhaustive list, we can point to: Article 3(3) of the Law governing Nationality (Law no. 37/81 of 3 October 1981, as most recently amended by Organic Law no. 2/2006 of 17 April 2006); Article 3(1) and (5) of Law no. 37/2006 of 9 August 2006, on the exercise of the right of EU citizens and the members of their families to circulate freely and reside in Portuguese territory; Article 100 of Law no. 23/2007 of 4 July 2007, which approved the legal regime governing the entry into, stay in and departure or removal from Portuguese territory; Article 2(h) of Law no. 27/2008 of 30 June 2008, on the conditions and procedures for the grant of asylum or subsidiary protection.
Particular note (because they reveal the importance that the community attaches to forms of sharing lives by persons of the same sex, to the extent that they extend the ultimate instrument for protecting legal assets – the criminal law – to them) should be made of the provisions of the Penal Code (CP) and the Code of Criminal Procedure (CPP), which were changed to include the periphrasis “person of another or the same sex”, so as to attach the same importance to such life situations from a criminal-law point of view as that given to the protection of the situation of spouses or ex-spouses. In particular, this is the case of Articles 68(1)(c), 134(1)(b) and 159(7) of the Code of Criminal Procedure and Articles 113(2)(a), 132(2)(b), 152(1)(b), 154(4), 364(b) and 367(5)(b) of the Penal Code.
17. Decree of the Assembly of the Republic no. 9/XI resulted from the passage of Government Bill no. 7/XI (Diário da Assembleia da República Series A II, no. 18XI/1 of 22/12/2009), which the government submitted to the Parliament with the objective of “removing the legal barriers to civil marriage between persons of the same sex”. In the ‘exposé of reasons’ for the Bill, the government states the goal of “above all, putting an end to an old form of discrimination which has been debated at length and in depth in Portuguese society (...) and is undoubtedly a cause of exclusion and suffering for many people – and which the evolution of social awareness now makes not only unnecessary, but truly unacceptable”. It invokes the jurisprudence contained in Ruling no. 359/2009 as meaning that “taken as a whole, the relevant principles and provisions” of the Constitution “provide a constitutional-law framework that is open when it comes to the legislator’s freedom to shape the law with regard to the marriage of persons of the same sex”.
The parliamentary groups of the Left Bloc and The Greens parties respectively submitted Member’s Bills nos. 14/XI and 24/XI with regard to the same provisions of the Civil Code, with the same essential objective of permitting same-sex marriages.
The parliamentary group of the Social Democratic Party also submitted Member’s Bill no. 119/XI, which sought to grant legal protection to persons of the same sex who live in a situation analogous to that of spouses, by creating a new legal format – the ‘registered civil union’, which would have been accessible exclusively to persons of the same sex and would have made it possible to safeguard part of the protection afforded by the legal regime applicable to marriage (see the Opinion of the Committee on Constitutional Affairs, Rights, Freedoms and Guarantees and the “technical notes” in Diário da Assembleia da República, Series II A, no. 23/XI of 9/1/2010).
None of these three legislative initiatives were passed (Diário da Assembleia da República, Series II A, no. 20/XI, of 9/1/2010).
Having said all this, let us move on to the direct consideration of the request.
18. The request is based on the argument that eliminating the parenthetic interpolation “two persons of different sexes” from Article 1577 of the Civil Code, and replacing it with the expression “two persons”, is at odds with the constitutional concept of marriage and, as a result, with the constitutional concept of family, as adopted in Article 36(1) of the Constitution.
Article 36 of the Constitution reads as follows:
(Family, marriage and filiation)
1. Everyone has the right to form a family and to marry under conditions 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 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 in accordance with the law, which must lay down swift forms for completion of the respective procedural requirements.”
Four kinds of right concerning the family, marriage and filiation are recognised and guaranteed in this Article: a) the right to form a family and enter into matrimony (paras.  and ); b) spouses’ rights within and outside the family (para. ); c) parents’ rights and duties in relation to their children (paras.  and ); and d) children’s rights (paras.  and the second part of ).
Although the request is centred around a breach of Article 36(1), paragraph (2) is also directly and especially relevant to the question it poses. The fact is that while the structure of paragraph (1) is typical of a fundamental right (Everyone has the right to ....), paragraph (2) leaves it to the ordinary law to regulate the requisites and effects of marriage. These two precepts form an indivisible whole when we ask ourselves whether the terms under which legislative power was exercised in relation to one of the requisites for marriage violated the institutional guarantee of marriage, and consequently of the family.
In reality, the normative option whose constitutionality is subject to review herein does not have the effect of denying any person, or restricting, the fundamental right to (or not to) marry. What may be at stake is a failure to preserve the essential core of the institution of matrimony, as one must consider it to be imposed by the Constitution, by removing an element from the concept (that the persons concerned are of different sexes), which is a factual presupposition of the conjugal state as it is traditionally seen in the legal order.
The wording of Article 36(1) and (2) has not been changed since the original text of the Constitution was passed (para.  was amended in the 1989 Constitutional Revision, and para. , which was introduced in the 1982 Constitutional Revision, was amended in the 1997 Constitutional Revision, with additions that do not in any way influence the analysis of the question before us). At the moment in history when the Constitution was written and came into force, and when it entrusted the ordinary legislator with the task of establishing the rules for the “requisites” 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”. This precept was the object of some small amendments, which are not relevant to the present case, made by Executive Law no. 496/77 of 25 November 1977 – a legislative act that was in fact passed with the declared intention of making the Civil Code “compatible” with the Constitution.
We cannot fail to attach interpretative importance to this circumstance, not because the Constitution’s meaning must be determined in accordance with the ordinary law, but because, inasmuch as the constitutional text was rooted in the social reality and legal context in which it emerged, at that time marriage was what it had been for centuries and – if we limit ourselves in time to the phase in which marriage was secularised, we can say with certainty on the basis of the nineteenth century codifications of the law – what it has been in the legal systems that belong to the same cultural area as our own: an agreement between a man and a woman, made in accordance with the provisions of the law and with the goal of establishing a fully shared life between them. In effect, the tensions that affected the institution of matrimony at the time when the Constitution was drafted and passed concerned other aspects of marriage and the family: the possibility of dissolving marriage by divorce, the equality of the spouses within the conjugal arrangement, the effects on property and the person, and the elimination of the distinction between legitimate and illegitimate children. The desire to make marriage between spouses with the same gender permissible is a phenomenon that was virtually inexistent in the public arena, either in Portugal or, to any significant extent, in other countries. Where homosexuality was concerned, in those days that which was considered to be a mismatch between social reality and the legal framework were the latter’s repressive aspects (e.g. the existence of punishments, or increases in punishments, with regard to sexual acts with persons of the same sex), not the omission of protection for stable unions of this type. It took more than a decade before the progressive integration of homosexuals into society led to a “slide” from positions of contesting the system to “conservative” desires to participate in institutions – namely matrimony – as a form of public acknowledgement of sexual orientation on terms of a strict equality with heterosexuals (see Javier Seonae Prado, Matrimónio, Familia y Constitución in Matrimónio y Adopción por Personas del Mismo Sexo, Cuadernos de Derecho Judicial XXVI).
But this same fact leads to another. While it is possible to say without hesitation that the marriage which the Constitution portrayed was marriage between two persons of different sexes, it is also possible to safely conclude that the constitutional legislator did not decide in favour of any option in relation to the matter that is before us now that would have prohibited the evolution of the institution of matrimony. No one knew the problem even existed in either political or legal terms, so the historical element should be mobilised with even more caution than it generally warrants when we interpret the text of the Constitution.
Moreover, the fact is that the Constitution not only charges the legislator with determining the “effects” of marriage, but also the “requisites” for it (Article 36). This is a power that cannot be interpreted as being restricted to the aspects of mere formal regulation, so it is important to know whether, regardless of what marriage was in the social and legal context in which the norm contained in Article 36(1) was written, the legislative innovation before us (in seeking to respond to that which the legislature felt was a legitimate desire for recognition and protection in the face of new social needs to which, as we have said, other forms of accommodation within the law are being afforded) is such that it infringes on the institutional guarantee of marriage.
In effect, it is possible to consider that marriage is covered by the so-called ‘guarantee of an ‘institute’. At the same time as it recognises individual rights, Article 36 also recognises and guarantees the family and marriage as institutions in their own right, which are the object “of typical institutional guarantees, which can therefore not be legally done away with or disqualified” (Gomes Canotilho and Vital Moreira, op. cit., p. 561). The Court has already acknowledged this, namely in Ruling no. 590/2004, in which it said:
“As to the right to marry, it is possible to say that it entails two dimensions. On the one hand, it enshrines a fundamental right; on the other, it is a true norm that contains an institutional guarantee. As Pereira Coelho and Guilherme Oliveira explain (Curso de Direito da Família, Vol. I, 2nd edition, Coimbra Editora, 2001, p. 137):
‘It is worth referring to (...) the question of whether the second part of Article 36(1) only grants a fundamental to marry, or – more than that – it is a norm that contains an institutional guarantee. Although the Constitution does not explicitly formulate a principle of the ‘protection of marriage’ (only the family is protected in Article 67), we have been of the opinion that the institution of marriage is constitutionally guaranteed, inasmuch as it would not make sense for the Constitution to grant the right to enter into matrimony and simultaneously allow the legislator to do away with the institution or disfigure its ‘essential core.’ ”
As Vieira de Andrade says in Os Direitos Fundamentais na Constituição Portuguesa de 1976, 4th ed., pp. 135-137, “the Constitution is – particularly in some basic domains of the life of society – a newcomer that takes the leadership of a legal universe in which it finds normative complexes, sometimes thousands of years old, some of which possess a systemic logic based on ideas of self-responsibility and personal self-development. At such moments the Constitution can choose to recognise and guarantee the essential outlines of those ordinary-law normative complexes, without prejudice to the ability to redefine and place its stamp on them at the constitutional level. This is what happens with the recognition of private autonomy in a variety of its individual or family manifestations, such as contractual freedom, property, inheritance, marriage, family, filiation, family responsibility for the upkeep and education of children, and adoption”; and as the same author also notes, we must understand that institutional guarantees refer to the legal-normative complex and not to social reality in its own right, in such a way that it is within that scope that they are binding on the legislator, “admitting the existence of a smaller or larger space in which the latter is free to shape the law, but always prohibiting it from destroying or disfiguring the institution (or its essential core)”.
19. We must nonetheless offer a prior clarification in relation to the possible meaning of that which, in those domains in which the Constitution enshrines individual subjective legal positions, such as the fundamental right to marry contained in Article 36(1), the constitutional command to the legislator to preserve the essential core of the private-law legal complex via which the fundamental right is actually implemented – the so-called ‘guarantee of an institute’ – i.e. the essential core of the complex of legal norms and relations that have been unitarily structured and rooted in the infraconstitutional legal order over the course of a certain historical development process.
In effect, it is only in this format that the invocation of an institutional guarantee which is to be found in the request can make sense. In truth, that which the Constitution directly selects for protection in its role as a “fundamental element of society” is the family, and not marriage (in the broad sense of the term – the institution of matrimony), which is only one of the ways in which to form one (Article 67). In the words of Rui Medeiros (Constituição Portuguesa Anotada, Vol. I, p. 689), whereas “in Article 36 the primary focus is both the individual/subjective dimension of the rights of the members of the family, including apart from anything else the right to form a family and to marry itself, and, with regard to the family as a whole, the dimension of freedom, Article 67, although doing so without losing sight of the objective of the personal fulfilment of the family members, fundamentally protects the family itself as an institution, and in particular charges the state with the duty to positively protect it”.
The ‘guarantee of an institute’ concept (one format of the more general institutional guarantee in the broad sense, which also encompasses the public-law institutional guarantees, which may require a different focus and which it is not important for us to consider here) was forged in Germanic doctrine, within a constitutional framework (the Weimar Constitution) that had no effective mechanisms for binding the legislator to the Constitution and for the direct applicability of the fundamental rights, in such a way as to safeguard certain sectors of the infraconstitutional order from the actions of the ordinary legislator. To the extent that the legislator was forbidden to change that which typified a given private-law ‘institute’, the fundamental rights were guaranteed the corresponding effective protection. Due to the combined effects of the evolution of the constitutional system for protecting the fundamental rights, the subordination of all the powers of the state to the Constitution, the fact that both public and private entities became bound by and subject to the direct application of the constitutional precepts regarding rights, freedoms and guarantees, and the institution of judicial mechanisms for guaranteeing constitutionality, the construct has lost that historical function and cannot be maintained with the same meaning.
In addition to the individual right to marry or not to marry, the fundamental right to marriage not only includes the requirement that the state organise procedures and maintain official organisational structures (the preliminary procedure, the ceremony, the public record) to this end, but also – as with the other fundamental rights that entail the existence of legal situations – the requirement that the legal order contain norms which regulate the formation and extinction of the corresponding legal situation and the effects that it has on persons and property. This is a public subjective right that conceptually presupposes the existence of the corresponding private-law legal ‘institute’, whose prior existence provides elements with which to interpret the objective normative scope of the constitutional norm that enshrines the fundamental right in question. In effect, it is possible to see fundamental rights as having or entailing both an individual legal ‘side’, to the extent that they guarantee their holders a public subjective right, and an objective individual ‘side’, inasmuch as they are constitutional guarantees of frameworks for life that are ordered and shaped by the law.
But one cannot use an institutionalistic way of thinking as the basis for reversing the sense of the guarantee by imposing the preservation of the ‘institute’, as it exists at the time, against actions on the part of the legislator that do not conflict with the way in which the meaning of the fundamental right concerned has been determined within the axiological of the overall system of fundamental rights. This means that, now that the legislator has adopted the option which is now before us for review, we must verify whether there is a compression of the essential core of the implementation of the purposes or individual and community legal assets to which the fundamental right to marriage must be considered to be constitutionally attached, within the framework of a system of fundamental rights that is axially centred on the dignity of the human person (Article 1 of the Constitution).
20. While the request (and the opinion on which it is based) acknowledges the freedom to shape legislation which Article 36(2) of the Constitution grants to the legislator, it argues that the legislative amendment in question does not respect those limits, because it violates the concept of marriage that is operative in paragraph (1) of the same Article. In summary, it does so for two types of reason:
I – Due to its historical origin, seen from the point of view of a systematic interpretation and concatenated with its link to the concept of family and filiation, the constitutional concept of marriage unequivocally points to marriage as a union between two persons of different sexes.
II – Article 16(2) of the Constitution requires that the concept of marriage be interpreted in conformity with the Universal Declaration of Human Rights (UDHR). The marriage which is provided for and protected in the latter and which, due to the said constitutional norm, results in a concept that is binding on Portugal, is the marriage between a man and a woman.
21. Let us begin with the latter line of argument.
Article 16(1) of the UDHR states that: “Men and women of full age (…) have the right to marry and to found a family”. Given that this reference to the gender of the holders of the right is the only case of its kind in the UDHR (“All human beings” – Article 1; “Everyone” – Articles 2, 3, 6, 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28 and 29; “All” – Article 7; “No one” – Articles 4, 5, 9, 11, 12, 15, 17 and 20), it is reasonable to conclude that the concept of marriage which is the object of the protection of this international-law text concerns the union between a man and a woman (the Constitutional Court of South Africa interpreted it in this way in Minister of Home Affairs v. Fourie, although it emphasised that it is “descriptive of an assumed reality, rather than prescriptive of a normative structure for all time”).
Having accepted this interpretation of the UDHR, and in the light of the fact that Article 16(2) of the Constitution states that: “The constitutional precepts concerning fundamental rights must be interpreted and completed in harmony with the Universal Declaration of Human Rights”, the request argues that Article 36(1) should be interpreted such that, at the same time as it enshrines the right to marriage between individuals of different sexes, it prohibits the extension of marriage to persons of the same sex.
Let us see whether this is the case, because if this were the imperative interpretation of the text of the Constitution, it would be possible to decide that the question of constitutionality had been resolved.
Article 16(2) of the Constitution sets out a principle of interpretation in conformity with the Universal Declaration of Human Rights. Its useful scope is that of allowing us to resort to the Universal Declaration in order to determine the sense of a constitutional norm pertaining to fundamental rights, to which it is not possible to attribute an univocal meaning, or in order to render operable indeterminate constitutional concepts regarding fundamental rights (Gomes Canotilho and Vital Moreira, op. cit., pp. 367-368; Vieira de Andrade, op. cit., p. 45). We thus accept that Article 16(2) of the Constitution raises the UDHR to the status of a criterion for the interpretation and integration of ordinary legal and even constitutional rules related to fundamental rights. Besides the fact that the Universal Declaration of Human Rights has been adopted into the Portuguese internal legal order, we can thus see that from the moment at which one looks on this instrument as an element of reference for the interpretation of constitutional rules themselves, it is recognised to occupy a special – almost supra-constitutional – place in our legal order (Rui Moura Ramos, L' Intégration du droit international et communautaire dans l' ordre juridique national, in “Da Comunidade Internacional e do seu Direito”, Coimbra, 1996, p. 254).
However, while the argument on which the request relies is correct with regard to both its interpretation of Article 16(1) of the UDHR, and the existence of the principle that the Constitution must be interpreted in conformity with the latter international-law instrument, there is a mistake in its reasoning. The meaning of the norm that grants the UDHR this importance is that it extends the cover which the Constitution affords to the fundamental rights, and not that it either extensively or intensively restricts or limits that cover. This is the same as saying that Article 16(2) of the Constitution only functions on the individual-law ‘side’ of the fundamental rights and when it does not lead to a solution that is less favourable to those rights than an ‘endogenous’ interpretation of the Constitution. Here there must be an intervention on the part of the principle of the preferential application of norms that enshrine a higher level of protection, in a way that is similar to that provided for in Articles 52(3) and 53 of the Charter of Fundamental Rights of the European Union (Gomes Canotilho and Vital Moreira, op. cit., p. 368).
Thus Article 16(2) cannot operate in such a way as to prevent the ordinary legislator from also permitting marriage by a category of individuals who possess no inclination towards a loving and sexual relationship with persons of the opposite sex, and who consequently cannot claim the protection of the UDHR in order to enable them to marry in conformity with their sexual orientation, on condition that by doing so the legislator does not restrict or limit access to heterosexual marriage by men or women of full age, or reduce the content it holds for them as a fundamental right.
Having said this, inasmuch as we cannot find any cogent interpretative limits in the UDHR on extending the right to enter into matrimony (marriage as an act) to persons of the same sex and their consequent entry into the state of persons who are married to one another, with the status that emerges therefrom in terms of the personal and property-based relations between the spouses themselves, and between both or each of them and third parties (marriage as a state), we must ask ourselves whether the normative solution before us conflicts with two aspects of the institutional guarantee of marriage: the position of subjects of the guarantee attributed to persons of different sexes who are entering into matrimony (act) or are spouses (matrimonial status); and the pursuit of the community values which the Constitution enshrines in the ‘institute’ of marriage and the institution of the family. With regard to the second of these two aspects, inasmuch as what is at stake is an effect on the level of intensity with which the constitutional normative programme is implemented – i.e. the level of the extent to which that programme is fulfilled – the Court would only be able to criticise the option taken by the legislature if there were manifest evidence of excess.
22. In order to bind the constitutional concept to the imperative requirement for spouses to be of different sexes, the request argues that the Constitution provides an adequate framework for the notion of marriage by placing it within the context of the family, thereby limiting interpreters to the scope of a topical, but also systematic, interpretation, the result of which cannot distance itself from a literal reading of the norm contained in Article 36. To this end it invokes the provisions of Article 67(1), Article 68(1) to (4) and Article 71(2) of the Constitution. It says that in all these cases the reference to the family is associated with filiation, which plays a central role in the institution of the family, as enshrined in the Constitution, and that particular weight should be given to the safeguarding of the family provided for in Article 36, because of its prescriptive content. To sum up, the request argues that the requirement that the two spouses must be of different sexes is imposed in order to safeguard the constitutional purposes or values linked to the protection of the family and of the procreative potential of marriage, so the difference in sexes forms part of the core structure of the guarantee whose existence must be deduced from the Constitution.
There can be no doubt that the conception and birth of biologically common children is dependent on a difference in sexes; and consequently that, inasmuch as matrimony between spouses of the same sex cannot lead to the conception and birth of common children, it cannot be credited with the communitarian function of contributing to the reproduction of society.
However, this potentiality cannot be raised to the position of a purpose that is absolutely essential to the constitutional guarantee in question, because it does not even form part of the actual concept of heterosexual marriage. Although the ‘Gomes da Silva Proposal’ suggested that it should be, and this was at first included in the ‘Initial Drafts’ that resulted from the 1st and 2nd Ministerial Reviews, it was abandoned in the final version of the 1966 Civil Code (see the excerpts of the preparatory work in Rodrigues Bastos, Direito da Família segundo o Código Civil de 1966, vol. I, p. 20). The initial and constant desire of spouses not to have children does not prevent them from entering into matrimony and remaining married. Just as, in their own right, sterility or impotence do not prevent or invalidate it. Indeed, as Pedro Múrias reminds us when he argues in favour of same-sex marriages in Casamento entre Pessoas do mesmo Sexo (pp. 40-41), “marriages at sterile ages are frequent and, among other things, due to their importance, are provided for in the law (see Article 1720[b] of the Civil Code)”.
We do not deny that, inasmuch as motherhood and fatherhood are eminent social values (Article 68 of the Constitution), it is also not without effect on the community if the legislator, when it comes to lay down the “requisites” for marriage, requires that the latter unite two people who are together capable of undertaking “a project which, although it is capable of failing, is a priori endowed with an intentionality that provides some guarantees of success where the ‘reproduction of society is concerned’ – i.e. in the activity that permits the natural conception and birth of citizens and their maintenance in an activity that is of use to society, not just as individual members of a concrete biological species, but as citizens who are balanced, useful and responsible” (to paraphrase Rita Lobo Xavier, albeit when speaking to the more general topic of the protection of the family, apud Jorge Miranda and Rui Medeiros, Constituição Portuguesa Anotada, Vol. I, p. 690). Having said this, at the same time we must not abandon the idea 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 …” (Ruling no. 359/2009).
The above may be an argument why one should not believe that, within the axiological framework of the Constitution, there is an imperative constitutional requirement to redefine the current concept of marriage (a hypothesis in which the existing regime would be unconstitutional and would have to be eliminated); but it does not serve as a basis on which to judge that the matrimonial institution has been denatured by including same-sex marriages in the same legal category as marriages between persons of different sexes.
Social reality in the domains of marriage and the family is in a process of notable and rapid change which, where the problem before us here is concerned, is having the legal consequences and is the object of the varied responses that our earlier notes on international and comparative law seek to reflect. In an open and plural society, this change could not be other than the object of a ‘reasonable divergence’ which leads to remedies that fall within the scope of a legislative discretion whose result – when it does not go so far as to attack the subjective dimension of the fundamental rights – goes far beyond the domain of judicial controllability.
23. So it is legitimate to ask just what there is that is constitutionally essential in the ‘institute’ of marriage, if it is not a precondition whose non-fulfilment under the current infraconstitutional legal regime causes the act to produce no results at all (on the doctrine of the legal non-existence of marriage and reasons that justify it, see Francisco Pereira Coelho and Guilherme de Oliveira, op. cit., 4th ed., p. 300). This is a question that the Court is only called on to answer as far as it is necessary to our scrutiny of the constitutional validity of the norms that have been brought before us – i.e. to the extent required to know whether the change in the subjective or modal structure of marriage that consists in allowing two persons of the same sex to marry one another conflicts with that constitutional essence.
The fact that the right to enter into matrimony is configured as a fundamental right means that, in recognition of the importance of marriage as a basic form of social organisation, the legislator cannot remove it – in its role as a legal ‘institute’ that is intended to regulate situations in which two persons share their lives – from the legal order.
However, the Constitution does not define the profile of the elements that go to make up the ‘institute’ referred to in Article 36(1), and, in paragraph (2) of the same precept, relegates the task of maintaining the necessary connection between the law and social reality to the legislator. The constitutional concept of marriage is an open one, which not only allows the legislator to shape it in a variety of ways, but also permits various political, ethical or social conceptions. The ordinary legislator is charged with understanding what it is that corresponds to the dominant conceptions in this matter at each moment in time and reflecting them in the legal order (in this respect, see Miguel Nogueira de Brito, when he argues against same-sex marriages in Casamento entre Pessoas do mesmo Sexo, pp. 58-59).
It is this same interpretation that is already present in the grounds for Ruling no. 359/2009, when the Court says: “…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.”
In this respect the Portuguese Constitution is more favourable to the legislator’s intervention in the direction that is questioned in the request than are some of its counterparts, to the extent that it poses less textual obstacles to the above interpretation. This is partly because Article 36(1) refers to the holders of the right by means of the word ‘Everyone’, and not by the expression ‘The man and the woman’, which is generally invoked in the face of other constitutional texts or the texts of fundamental rights as an argument in favour of the necessary heterosexuality of marriage; but above all due to the express provision contained in paragraph (2) of the same Article, which has already led one author (Nicola Pignatelli, “I livelli europei di tutela delle copie omosessuali tra “istituzione” matrimoniale e “funzione” familiare”, in Rivista di Diritto Costituzionale, 2005, p. 281) to write:
“In realtà neppure negli altri Stati europei, in cui non vi è stata un’apertura del matrimonio, le Costituzioni definiscono i profili costitutivi dell’istituto, dovendo dedursi che il principio dell’eterosessualità non rappresenta una soluzione necessaria ma, anche in questo caso, una scelta (possibile) dei legislatore, per quanto inversa rispetto all’esperienza olandese, belga e spagnola. Questa comune logica costituzionale, che presuppone un intervento normativo, trova una sua chiara esplicitazione nell’art. 36 della Costituzione portoghese, che dopo aver riconosciuto il diritto a contrarre matrimonio in piena uguaglianza dispone che «la legge regola i requisiti e gli effetti del matrimonio e del suo scioglimento per morte o per divorzio». Inoltre neppure dalle Costituzioni in cui è sancita una tutela “speciale” per l’istituzione matrimoniale, come in Italia, in Germania, in Irlanda, può desumersi un’indicazione sulla illegittimità del coniugio omosessuale sul presupposto che tale preferenza nulla dice sul sesso dei coniugi, potendo al contrario argomentarsi, alla luce di tale favor, che lo Stato avrebbe il dovere di assecondarne la diffusione e magari l’accesso (anche agli omosessuali)”.
This position does not mean that the marriage referred to in Article 36 of the Constitution of the Portuguese Republic should be seen as a formula that is empty of any content, to be freely filled in by the legislator.
Marriage must contemplate the establishment of a relationship in which two people share their lives, which must be established by means of an act that is called by that name and has binding effects that are laid down by law, and must be free, unconditional and not subject to any set time limit, failing which its essential core and thus the very scope of its protection as a fundamental (subjective) right may be disfigured. To marry (marriage in fieri) is to gain access to the state of being married (marriage in facto esse), which is defined in accordance with the legal effects operated by marriage. To quote Francisco Pereira Coelho and Guilherme de Oliveira (op. cit., p. 337): “A person marries and is then another person, he/she is legally another person. His/her situation as a person is different, as is that of his/her property”. When it regulates marriage, the ordinary legislator is not only obliged to guarantee free access to this legal relationship under conditions of full equality, but also to comply with other constitutional parameters, such as that of respect for the founding principle of the Republic and of the system of fundamental rights – the dignity of the human person.
This limit in the form of the essential core is not exceeded by abandoning the rule that spouses must be of different sexes.
In effect, while the establishment of a shared life situation by two people is a key structural element of the concept of marriage, without which that concept is decharacterised, the same cannot be said of the difference in sexes between the people who want to involve themselves in that shared life and to subject it to the rules of marriage. This difference in sexes would only be indispensable for shared life on the sexual level to be able to lead to the conception and birth of biologically common children – a purpose to which marriage is not bound by either the Constitution or the ordinary law.
In reality, the state in which two people share their lives – which is characterised by sharing and mutual assistance, in a common life path that is governed by the law and possesses a nature that tends to perpetuity – also lies naturally within the reach of two people of the same sex who want to bind themselves in this way, one to the other and before the state, and to be acknowledged as such by the community. This is why the legislator is not precluded from giving this way of achieving the free development of personality its current form in order to protect the relations between persons of different sexes, thereby enabling the interested parties to adopt the marriage format, without considering that the ‘institute’ is thereby deprived of typical elements that are essential to the corresponding guarantee function.
24. At the same time, extending marriage to spouses of the same sex does not contend with the recognition and protection of the family as a “fundamental element of society” (Article 67 of the Constitution).
It is important to bear in mind that the Constitution untied the bond between the formation of a family and marriage. The concept of family as a “fundamental element of society” is an open and plural one that is adaptable to social needs and realities. The Constitution did not define what the family is, and gave its protection to the different family models that exist in our social reality. As the Court said in Ruling no. 651/09, albeit it spoke against the backcloth of de facto heterosexual unions, the family that warrants the state’s protection under the terms of Article 67 of the Constitution “is not just the one that is based on matrimony; it is also the one which presupposes a self-regulated ‘community of affections’ that is lived in a stable and lasting manner on the margins of the plurality of rights and duties which, under the terms of the civil law, unite the spouses via their entry into matrimony. The right to choose to live in such a ‘community of affections’, which the parties voluntarily model on the margins of the civil effects of marriage, certainly has a place in the Constitution – be it by means of the disconnection that Article 36(1) of the CRP establishes between the ‘right to form a family’ and the ‘right to marry’, or be it via the general freedom of action clause that is included in the right to the development of personality contained in Article 26(1).”
Marriage between persons of the same sex will only mean that the space for interpersonal fulfilment, cohabitation, mutual assistance and contribution to the common needs with a view to complete personal fulfilment, which is what the family consists of, will, for those persons too, take on the legal form that results from their reciprocally binding themselves to one another. There are no grounds for seeing a sacrifice in this extension – not even on the level of the administration of scarce public resources with a view to the fulfilment of the tasks with which the state is charged in this domain (Article 67 of the Constitution).
We thus do not see how the new marriage regime can conflict with “society and the state’s” duties to protect the family, when seen as an existential category or life phenomenon which the Constitution says is a necessary legal institution.
25. A definition of marriage by the ordinary law such as to encompass marriage between persons of the same sex might raise objections if, in its own right and abstractly speaking, it were capable of affecting other fundamental subjective rights – particularly those concerning the same right on the part of persons of different sexes. In that case it would be possible to open the way to invoking the interpretative value of the UDHR in defence of the scope of the right to marry, as described above.
However, it seems clear that the attribution of the right to marry to persons of the same sex does not affect the freedom of persons of different sexes to enter into matrimony, nor does it alter the rights and duties that accrue to them as a result of their marriage, or the representation or image that they or the community might attribute to their matrimonial state. Unless, obviously, the loss of the symbolic value of marriage in general were to be attributed to the circumstance that that status could then be shared with couples with a homosexual orientation. This is a conception that would be based on a reason that would be constitutionally illegitimate (Article 13 of the CRP), and would therefore be unsustainable.
In short: marriage between persons of different sexes remains untouched in terms of the conditions under which it takes place, of its legal effects between the spouses and with regard to the state and third parties, and of its significance as a source of family relations and social commitment.
26. The request – albeit not in great detail, and in the part in which it argues for the idea that homosexual couples’ need for legal protection would be entirely fulfilled by means of a regime that embodied a “registered civil union” or something similar – says that the principle of equality could also be invoked in order to argue for the unconstitutionality of allowing persons of the same sex to marry.
The request does not set out the individual reasons why making marriage between persons of different sexes equivalent to, or not different from, that of persons of the same sex violates the principle of equality. This alleged breach of the principle of equality and the allegation that there is a violation of the institutional guarantee are founded on the same conception of marriage: if marriage presupposes two persons of different sexes, to subject the union between persons of the same sex to that same ‘institute’ would be to treat in the same way that which is different because it does not fit within the normative group of intended recipients for which the ‘institute’ in question is designed. In this way, that which we have said in relation to the ‘guarantee of an institute’ would also be valid with regard to the principle of equality.
As the Court has frequently stated, there can be no doubt that the principle of equality enshrined in Article 13(1) of the Constitution of the Portuguese Republic requires the legislator to treat that which is essentially equal equally, and to treat that which is essentially different differently. This maxim leads to the prohibition of arbitrariness, which functions as a negative principle of the control of legislative options. Treating situations that are de facto equal differently, and treating situations that are de facto different equally, both violate the principle of equality when it is not possible to find a reasonable motive that arises out of the nature of things, or is in some other way understandable in the concrete case in question, for the legal differentiation or the same legal treatment respectively – i.e. when the provision has to be qualified as arbitrary. Having said this, as it is also customary for the Court to repeat, the fact that the legislator is bound to comply with the principle of equality does not do away with its freedom to shape legislation, and it is responsible for identifying or qualifying the de facto situations that will serve as points of reference for that which must be treated the same or differently. There is only a breach of the principle of equality in the sense that it prohibits arbitrariness, when it is not possible to find a material basis for the legislative measure (for all these, see Ruling no. 232/2003, which is available at www.tribunalconstitucional.pt, with an exhaustive list of jurisprudence and doctrine).
Now, while there can be no doubt that from the biological, sociological or anthropological point of view, a lasting union between two persons of the same sex and that between two persons of different sexes constitute different realities, from the legal perspective treating them in equivalent ways is not without material grounds. In truth, it is reasonable for the legislator to be able to privilege the symbolic effect and optimise the anti-discriminatory social effect of its normative treatment by extending the protection of the unitarian framework of marriage to such unions.
27. As was the case in Ruling no. 359/2009, in the face of a legislative amendment of this nature, here too it seems useful to recall that which the Court said in Ruling no. 105/90:
“(...) 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.”
28. Everything that we have said above means that the doubts as to the constitutionality of the norms before us, which were the reason for the present prior review request, must be held to be invalid and that none of them are in breach of Article 36(1) of the Constitution.
As such, the Constitutional Court hereby decides not to pronounce the unconstitutionality of the norms contained in Article 1, Article 2 – the latter to the extent that it amends the text of Articles 1577, 1591 and 1690(1) of the Civil Code –Article 4 and Article 5 of Decree of the Assembly of the Republic no. 9/XI.
Carlos Fernandes Cadilha
Carlos Pamplona de Oliveira
Joaquim de Sousa Ribeiro
Ana Maria Guerra Martins (My vote does not mean that I am taking any position with regard to the question of unconstitutionality that was at stake in Ruling no. 359/09 – i.e. that of the unconstitutionality of the prohibition on same-sex marriages.)
Gil Galvão (I voted in favour of the decision, in harmony with the position I took in Ruling no. 359/2009)
Maria Lúcia Amaral (with concurring opinion)
Catarina Sarmento e Castro (with concurring opinion)
Maria João Antunes (I voted in favour of the decision because, as I said in the dissenting opinion I attached to Ruling no. 359/2009, I believe that the Constitution requires that two persons of the same sex be able to enter into matrimony.)
João Cura Mariano (with attached concurring opinion)
José Borges Soeiro (Dissenting, as per the attached opinion)
Benjamim Rodrigues (Dissenting, as per the attached opinion)
Rui Manuel Moura Ramos (with attached concurring opinion)
We voted in favour of the decision because we are of the opinion that the legislative option which was submitted to the Court for consideration – that two persons of the same sex be able to enter into matrimony – is not in conflict with the Constitution, albeit the latter does not require it (which is what the Court found in Ruling no. 359/2009).
This is thus a choice which, inasmuch as it pertains to a matter that does not form part of the untouchable core of the ‘institute’ to which the Constitution affords its protection, is at the heart of the democratic legislator’s political freedom to shape legislation. As such, once made, this choice can then be reviewed by sovereign decision of the same legislator.
It is not this Court’s place to interfere in the ambit of those of a democratic legislator’s decisions to which the Constitution accords the freedom to opt – even in cases in which the legal community that is affected by the decision in question is the whole human race and the matters that are to be decided possess an undeniable centrality. While such circumstances do not authorise the Court to abandon its role as a negative legislator, there can be no doubt that they have repercussions on the responsibility which a democratically legitimated positive legislator has to the community.
Maria Lúcia Amaral
Rui Manuel Moura Ramos
I voted for the view that the norms before us are not unconstitutional. However, unlike the Ruling – which arrives at this decision because its authors feel that the solution laid down in Decree of the Assembly of the Republic no. 9/XI is covered by the legislature’s freedom to opt – I believe that a constitutional imperative obliges the legislator to make this solution for equality part of the law.
Article 36(1) of the CRP, which states that everyone has the right to marry, does not provide a notion of marriage and requires that the ordinary law regulate the latter’s requisites, effects and dissolution. The subjective right that is enshrined in that Article presupposes the existence of the corresponding public-private-law legal ‘institute’, which must exist first, but the interpretation of what marriage can be must be made in the light of the Constitution – i.e. within the constitutional programme.
The constitutional system includes values, principles and rights which are relevant to an understanding of the notion of marriage and which interfere with its fundamental outline. They include the dignity of the human person (Art. 1 of the CRP), equality, freedom and the right to personal identity and the free (and coherent) development of personality (Art. 26 of the CRP). To my mind they result in e.g. the freedom of choice in relation to the form in which to constitute the core family (which includes the ability for everyone to opt for marriage), and the importance of the search for personal fulfilment (including the affections / emotions / sexual aspects of fulfilment) through marriage, here too in both cases always within the goalposts set by the constitutional framework.
Besides these individual aspects of marriage, the Constitution guarantees the right to form a family, in Article 36, and protects the latter in a special way. Inasmuch as marriage, as an (intimate) form of sharing life (and a joint vision of the future), is one of the ways of forming that fundamental element of society (which, in constitutional terms, must be seen as ‘1+1=2’ and not necessarily as ‘1+1≥3’), in my view the CRP requires the legislator to model the ‘institute’ of marriage in such a way as to safeguard (at least) the environment of the family affections, some degree of stability that is beneficial to the family, and the protection of each one in relation to the other as a result of the commitment that is made in the option to pursue a common life path (the assistance, care, sharing and trust that each one owes to the other); and I believe that the constitutional protection of the right to marriage also requires protection against third parties and against the state itself.
The Constitution also means that, as one of the key structural elements of society (in its role as one of the legal instruments via which the core of the family is constituted), marriage is a legal bond whose existence cannot fail to be ensured – always within the outlines that are permitted by the Constitution – and the legislator must determine the effects it has on persons and property and the ways in which it is formed and extinguished. Moreover, inasmuch as it possesses a special symbolism, in that which it embodies in terms of social recognition linked to both the act itself and the ensuing civil status, the legislator will always be responsible for safeguarding both its symbolic denomination and the fact that it is made public.
It is to this structure of the constitutional guarantee of marriage (and the ordinary legal guarantee, when it is constitutionally in conformity with that structure, and to the extent that, with reference to the constitutional guarantee, it can be considered to be a core element of the constitutional configuration of the ‘institute’) that we must turn when we seek to determine (as the Ruling does) whether it is possible (and in my opinion, it is an imperative requirement) to include same-sex marriage in the law.
Given that Article 36(1) of the CRP lays down that everyone has the right to marry under conditions of full equality, and in the light of the provisions of Article 13(2) of the CRP, which in particular guarantees that no one may be prejudiced or deprived of any right for reasons of (…) sexual orientation, it would be necessary to find sufficient material grounds for any differentiation.
If we look at the purposes of marriage – individual, such as safeguarding personal fulfilment on the level of the emotions and affections by means of an intimate sharing of lives; the provision of institutional protection for caring for the other; and the stability of the marriage bond and its symbolism – and bearing in mind those of its effects that are derived from the law (with regard to assets and the regime governing property, inheritance-related matters, duties of assistance, matters concerning social security…), one cannot see how a legislative measure could find enough of a material basis in order to provide the grounds for a different treatment for couples of the same sex who wanted to marry on the one hand and couples of different sexes who wanted to do so on the other. This is the case whether the difference established by the legislative measure concerns the binding legal effects of marriage, or – and to an even greater extent – the symbolic denomination of the bond. The relations that are established in an intimate sharing of lives between persons of the same sex are essentially, and to the extent that they are constitutionally relevant (once we have discarded, as we have, the understanding that the Constitution is capable of accepting a model of marriage based on a potentially procreative complementarity of sexes), the same.
To allow the legislator to say that two persons of the same sex can only get married if it is not to each other would be to grant them a right that they could only enjoy in contradiction with their sexual orientation. To give the legislator the option of denying the right to marriage when the sexual fulfilment of the couple occurs when both are of the same sex would be nothing more than to treat the same affections and life projects differently.
In the light of the constitutional concept of marriage, the purposes of the protection of the fundamental right in question, and that which we must consider to be included in the current state of being a married person (and only with regard to that which is directly derived therefrom), I am unable to find any sufficient rational and reasonable grounds for the difference, and I am of the view that the law should encompass the equal treatment whose reversibility I cannot accept within the current constitutional framework.
As such I consider that, given the provisions of Article 13(2) and Article 36(1) of the CRP, the legislator cannot but include marriage between persons of the same sex in the law, failing which it would violate the principle of equality.
Catarina Sarmento e Castro
I am not in agreement with the part of the Ruling that hazards a detailed description of the essential core of the constitutional concept of marriage, and prefer to opt to adhere to the model that is currently set out in the ordinary law, except for the requirement that the spouses be of different sexes.
As to the decision of the question of constitutionality that has been brought before the Court, it suffices to see that eliminating this requisite only expands (and does so with sufficient material grounds) the access to the model of marriage that is presently adopted by the ordinary law, without changing its format or interfering with the regime governing it. This means that the hypothesis that this amendment might lead to a decharacterisation or elimination of this ‘institute’ is not valid.
I therefore distance myself from the setting out of a problematic definition of the essential core of the constitutional concept of marriage, which unnecessarily conditions the resolution of many other questions of constitutionality, whose subject matter has nothing to do with the object of this request.
João Cura Mariano
I dissented from the majority because of my understanding of the issue, which I will summarily set out as follows:
In my view, the question which the Constitutional Court is now called on to consider concerns solely and exclusively the interpretation of Article 36(1) of the Constitution.
I immediately discard the parameter contained in Article 13(2) from the consideration of this question because, as the Court held in Ruling no. 359/2009, which I subscribed, that which the 2004 constitutional review involved was just the addition of another ‘suspect category’ to the prohibited reasons for discrimination that are expressly listed in the aforesaid precept. In Ruling no. 359/2009 the Court said:
“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.”
Further on in that Ruling, the Court transcribes its own Ruling 105/90, saying that:
“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.”
Gomes Canotilho and Vital Moreira defend the same position when they say that “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)” (Constituição da República Anotada, volume I, revised 4th edition, Coimbra Editora, 2007, p. 568).
That which it is important to address is the correct interpretation of Article 36(1), which enshrines the fundamental right of everyone to marriage. In addition to this subjective dimension, and as the decision says, marriage is also covered by the ‘guarantee of an institute’. Although I am in principle able to agree with the residual role that is reserved to this format within the framework of today’s constitutionalism, contrary to the understanding subscribed by the majority (“ (…) the construct has lost that historical function and cannot be maintained with the same meaning”, point 19), I do not believe that a possible transmutation of the format can make it irrelevant in the context before us, particularly where the essential core of marriage and the inclusion of the difference in the sexes of the spouses in that core are concerned. Indeed, in this respect we must bear in mind the fact that in the decision that is referred to in the present Ruling, when it gauged the compatibility of the Registered Partnerships regime with Article 6(1) of the Grundgesetz, the German Federal Constitutional Court centred its analysis on the circumstance that that regime did not affect the essential content of the ‘guarantee of the institute’ (marriage), which is provided for and enshrined in the German Constitution. While there can be no doubt that in its decision the German Court was addressing a different question from the one that forms part of the object of the present case (it was called on to consider the regime which the German legislature had specifically created in order to protect homosexual unions, in which it opted for the Registered Partnerships route and denied them access to marriage), and that, as we would do well to note, the aforesaid Article 6(1) is not entirely identical to our Article 36(1), I nevertheless consider it quite significant that the German Constitutional Court did not go down the path that has been adopted in the present decision – that of relegating the dogmatic category of the ‘guarantee of an institute’ to a ‘secondary’ level. This is a format which, we should especially note, has Germanic roots. The German Constitutional Court held that the difference in the spouses’ sexes forms part of the essential core of the ‘institute’ of marriage, and that this, as an essential key structural principle thereof, can only be changed by a constitutional review. I believe that the same conclusion is valid in relation to our fundamental legal order.
Although the Portuguese Constitution does not define what marriage is (as the German Basic Law does not), this does not mean that is totally impossible for marriage to be constitutionally rendered operable. Quite apart from anything else, Article 36 results in a configuration that is constitutionally enshrined and protected as an institutional guarantee, under which “in the face of the limiting interventions by the legislator, there is a requirement to safeguard the ‘essential minimum’ (essential core) of the various institutions” (see Gomes Canotilho, Direito Constitucional e Teoria da Constituição, 7th ed., Almedina, Coimbra, p. 397). The ‘essential core’ thus corresponds to the typical faculties which are included in the right, as it is defined in the normative hypothesis, and which correspond to the protection of the idea of individual dignity within the respective sphere of reality – they encompass that dimension of the personal values which the Constitution seeks first and foremost to protect and which characterise and justify the autonomous existence of that fundamental right (see José Carlos Vieira de Andrade, Os Direitos Fundamentais na Constituição Portuguesa de 1976, 3rd ed., Almedina, Coimbra, p. 176). This means that “marriage is thus not guaranteed as an abstract reality that is completely open to manipulation by the legislator and can be freely shaped by the ordinary law. On the contrary, it does not make sense for the Constitution to grant the right to enter into matrimony and simultaneously allow the ordinary law to do away with the institution or disfigure its essential core. (...) The legislator must accordingly respect the core structure of the institutional guarantee of marriage that can be deduced from the Constitution” (Jorge Miranda and Rui Medeiros, Constituição Portuguesa Anotada, vol. 1, p. 397). Francisco Pereira Coelho and Guilherme de Oliveira also argue that the “institution of marriage is constitutionally guaranteed, inasmuch as it would not make sense for the Constitution to grant the right to enter into matrimony and simultaneously allow the legislator to do away with the institution or disfigure its ‘essential core’ ”(see Curso de Direito de Família, volume I, 3rd ed., Coimbra Editora, p. 160).
In my view it is thus clear that the 1976 constitutional legislator had marriage between persons of different sexes in mind when it wrote Article 36. Not just because this was the dominant concept in society at the time – and the dialogue with history and tradition is a characteristic mark of any constitutional acquis – but also because if this were not the case, then the relevant precepts of the Civil Code would necessarily have been amended in 1977, in such a way as to ensure that the ordinary legislation accommodated the new constitutional conception. Indeed, this is what happened with a number of matters concerning filiation and equality between spouses. This conclusion is further strengthened by the fact that the precept is integrated into the whole formed by Article 36. The fact is that this constitutional norm enshrines “the profound connection between marriage and filiation in the Constitution”, as indeed results from its paragraphs 2, 3, 4, 5 and 6 (see Duarte Santos, “Mudam-se os Tempos, Mudam-se os Casamentos?”, pp. 327 et seq.).
While there can be no doubt that in the role which the new constitutional order attributed to marriage, the 1976 constitutional legislator presupposed that couples who were to marry would be of different sexes, one could argue that there has been a ‘constitutional mutation’ that has made the difference in spouses’ sexes irrelevant to the Constitution. It is only possible to justify that such a mutation exists with reference to a change in the essential core of the guarantee enshrined in Article 36(1), and not as something that is derived from the prohibition on discrimination based on sexual orientation, as I said earlier. I believe that arguing in favour of such a ‘constitutional mutation’, in the sense that it has entailed a change in the concept of marriage as it was seen and incorporated by the 1976 constitutional legislator and maintained in the successive – ordinary and extraordinary – constitutional revisions since then, would constitute an illegitimate exegetic result. The mechanisms – political and judicial – for guaranteeing a Constitution and the respective specific institutional arrangements can take on a variety of formats and variables. Even those mechanisms that present themselves as formally evident must be seen and interpreted within the context of the specific system in which they are located. As Robert Dahl pointed out: “specific solutions need to be adapted to the historical conditions and experiences, political culture, and concrete political institutions of a particular country.” (Democracy and its Critics, Yale University Press, New Haven, p. 192)
It is not possible to get around the fact that the constitutional development that has taken place within the framework of the political and judicial mechanisms which are designed to guarantee the Constitution displays a markedly textualist leaning. This explains the reiterated tendency on the part of the constitutional legislator to incorporate and crystallise the hermeneutics of this Constitutional Court’s jurisprudence on the precepts of the Constitution. As Maria Lúcia Amaral wrote, “In Portugal (...) jurisprudence is textualised – i.e. one seeks to ensure that it is rooted in a written constitutional norm. Instead of admitting that it must be incorporated in the constitutional corpus – and also accepting that part of that corpus must necessarily be mobile, capable of evolution, subject to public criticism, and gradually improved by that which is learnt from the experience with concrete cases – it is rigidified and is integrated by means of revisions into the text of the Constitution itself.” (“Problemas da judicial review em Portugal”, in Themis, year VI, no. 10, 2005, pp. 88-89)
While it may be possible to criticise this state of affairs, nevertheless it does not seem to me that it can be ignored by constitutional judges. One of the functions of the constitutional jurisdiction – whatever its localisation – is to make every effort to ensure the integrity of the Constitution, even against the will of the parliamentary majority of the moment. This contra-majoritarian or anti-majoritarian leaning makes it possible to protect the Constitution – and its underlying popular legitimacy – from the action of one-off parliamentary majorities. As is well known and as I will limit myself here to invoking, it also entails the protection of the democratic order: in this case, one is protecting the popular sovereignty that presided over the passage of the Constitution from any democratic forms of action which, albeit based on a parliamentary majority, are in disharmony with that popular sovereignty as expressed in a country’s fundamental laws.
I therefore believe that it is not legitimate to say that there has been any ‘constitutional mutation’ with regard to this matter that would do away with the need for an express, prior and clearly stated option on the part of the constitutional legislator. The fact is – and as Gomes Canotilho and Vital Moreira emphasise – the Constitution took on board the “historical concept of marriage as a union between two persons of different sexes” (see op. cit., p. 586). Thus, inasmuch as the ‘institute’ of marriage is adopted and guaranteed as a union between persons of different sexes, and given that there have been no amendments – on the constitutional level – that would legitimate the conclusion that there has been a ‘constitutional mutation’ in this field, the ordinary legislator could only pursue such a change if the constitutional legislator had previously expressly opted for it. As the opinion that is attached to the request points out, “such a postulate would lead (…) to a topical interpretation, the requisites for which imply that the new meaning that is to be attributed to the current (constitutional) law must verbally match the respective text to a minimum degree and that the ‘topical’ interpretation must be an extension, a prolongation, an expansion or a continuation of the spirit of the existing norm – and not a replacement for that spirit (…)”.
Now, inasmuch as we are in the presence of a normative concept, to the extent “that such concepts bring with them certain legal regimes whose outlines are sketched by the norm”, such as the set of parents’ rights and duties in relation to their children, and given the natural function of protecting and educating children, we must conclude that the aforesaid normative concept of marriage “is not applicable, as the result of an updated interpretation, to marriage between persons of the same sex.”
The fact is that the constitutional legislator is not to be confused with the ordinary legislator, to begin with in terms of the majority that is needed in order to pass an amendment to the Constitution and of the procedural details that such a process must fulfil. We should also note that in this country the passage of a constitutional amendment is not subject to requirements that would make it an almost unattainable objective. Indeed, this is reflected in the fact that in the 34 years of the Constitution’s life, seven amendments of its contents have already been passed. When, in the seven constitutional revisions that have taken place since 1976, the constitutional legislator has remained systematically silent on this subject, and given that the latter was not purely and simply ignored, as we can see from the explanations of vote that various members of the Assembly of the Republic made at the time of the amendment to Article 13(2) in 2004, we cannot fail to point to this behaviour as a reiteration of the understanding that the concept of marriage which is adopted and protected in the Constitution is the marriage between two persons of different sexes. Indeed, as the majority position itself acknowledges: “The questions of the forms and scope of the protection, recognition and legitimation of the situations in which persons of the same sex live together have burst onto the scene in the last three or four decades. They are becoming increasingly pressing in both the Portuguese legal order and other places within the same civilisational space and legal culture (…) to which Portugal belongs (…).” The attachment to literality that has been displayed by the legislator with responsibility for the various constitutional revisions forces us to acknowledge a certain meaning to its silence on this matter of marriage – the meaning that (to date) that legislator has not wanted any change in this domain, and that the concept of marriage which was adopted in 1976 continues to be valid in the constitutional order.
The majority position acknowledges and accepts that the ordinary legislator’s freedom to shape the legislation when it regulates the law governing marriage is not absolute. However, in my view the arguments which the majority advances in favour of the position that the difference in the sexes of couples who are to marry does not – unlike other aspects of the same situation – fall within the scope of the essential content that is thus outside the ordinary legislator’s ability to alter, are not satisfactory.
I therefore conclude that the ordinary legislator – in the form of a given short-term parliamentary majority – cannot do away with a constitutional option of this kind by imposing a concept of marriage that violates the essential core of the guarantee set out in the Constitution. Therefore – and because the issue of same-sex marriage is not a subject that has been ignored by the constitutional legislator – given that which has been the shape of the national constitutional paradigm, I believe that the possibility of introducing same-sex marriage by means of the law requires the constitutional legislator to specifically opt in that sense.
As Cristina Queiroz notes, “the functions that the Constitution performs mean that it is not possible to roll right over a written constitutional right by invoking an unwritten constitutional right. In this respect, here in Portugal it is not possible for there to be constitutional mutations in the form of derogations to a normative objective which the constitutional legislator has clearly set out. The constitutional revision process exists precisely in order to overcome the restrictions that are imposed on written constitutional norms in the name of unwritten constitutional law.” (Interpretação constitucional e poder judicial – Sobre a epistemologia da construção constitucional, Coimbra Editora, 2000, pp. 117-118).
To accept the amendment set out in the Bill that is under analysis before us, which does away with the requisite that persons who marry must be of different sexes, would be the same as accepting an amendment to the Constitution made by a simple Law of the Assembly of the Republic. In my view, in the present case the functions of guaranteeing the Constitution with which this Court is charged require it to pronounce such a solution to be unconstitutional.
These are the reasons that lead me to dissent from the majority ruling.
José Borges Soeiro
1 – I dissented because I am unable to concur with the majority solution.
2 – I firmly believe that the solution which is upheld in the Ruling represents a constitutional revision or mutation with regard to the matter of marriage, which the Constitutional Court is undertaking in breach of the constitutional principle of the separation of powers.
3 – First of all, I cannot fail to mention the fact that, when we are addressing a question that must be resolved within a Constitution of a ‘rigid’ type, it is not possible to see any utility in the path which the Ruling treads through the field of the comparative law of the common law countries.
If the research that was undertaken in this respect has any meaning, it can only be glimpsed in relation to those legal systems in which the constitution treats marriage in a way that is parallel or close to our own – for example, the German Basic Law, albeit our legislature did not follow the format adopted in the latter.
4 – Be this as it may – in summary, and restricting ourselves to the European environment – I would particularly note that neither the European Court of Human Rights, nor the European Commission of Human Rights, nor finally the Court of Justice of the European Communities have ever said that marriage as a legal institution which is reserved solely for heterosexual unions constitutes any form of illegitimate discrimination either in relation to homosexual unions, or in the light of the international conventions those institutions have had occasion to interpret (the European Convention on Human Rights, the European Union Treaty), or with regard to such universally accepted principles as those of human dignity and equal rights.
The same can be said of the Resolutions and Recommendations issued by the Parliamentary Assembly of the Council of Europe and the European Parliament that are listed in the Ruling.
The most that any of them has called for is the recognition of de facto partnerships between persons of the same or different sexes (possible under other ‘institutes’) and the attribution of equal rights (where their nature permits it).
Nowhere do they argue that extending the normative concept of marriage in such a way as to encompass both homosexual and heterosexual unions is the only possible solution that would serve as a means of respecting the principle of human dignity, the right to privacy, the right to equality, and the enjoyment of the various rights and freedoms without any distinctions, such as those based on gender or sexual orientation.
5 – The Ruling feels that: “The constitutional concept of marriage is an open one, which not only allows the legislator to shape it in a variety of ways, but also permits various political, ethical or social conceptions. The ordinary legislator is charged with understanding what it is that corresponds to the dominant conceptions in this matter at each moment in time and reflecting them in the legal order”.
In a constitutional system of a rigid, continental type that is coined in the ideological mould of the French Revolution, like ours, and bearing in mind the pertinent constitutional-law parameters, I cannot disagree more.
6 – In order to be able to accept that in our Constitution the concept of marriage is one that is open, subject to variations in time, according to the will of the ordinary legislator, we would have to see the verbal expression “to marry” contained in Article 36(1) of the Constitution of the Portuguese Republic as a concept of a descriptive type, a concept of a factual type, or a mere concept whose intention is to proclaim a constitutional programme which the ordinary legislator is to implement over a period of time – an intention that must always be displayed by means of expressions such as “the law shall regulate…”, “as laid down by law…”, “within the frameworks defined by law…”, “shall be governed by the law…”, etc.
If it were one of these types of concept, it would certainly be open to the absorption of new formulations of the supervening reality that postulated the protection of the same interests.
However, in the various centuries of the history of our nation up until the 1990’s, I have never seen it argued anywhere in this country that the concept of the right to enter into matrimony possesses such a nature!
Neither the people, nor the doctrine, nor our jurisprudence has ever seen it in this way!
On the date on which the text and the constitutional intention of the 1976 Constitution were determined, marriage was a normative complex which the legal system of the time precisely defined as a contract that presupposed that the spouses would be of different sexes, and via which they sought to form a family by fully sharing their lives, with the family considered to be a natural and fundamental element of society, to the extent that it ensured the renewal of one generation after another: in the 1933 Constitution (Articles 12 to 14), with regard to which Law no. 3/74 of 14 May 1974 transitionally maintained the effect of the part which did not contradict the principles set out in the Political Programme of the Armed Forces Movement (and it is undeniable that these dimensions of this legal institution did not contradict those principles), in the Civil Code that was then in effect (the 1966 Civil Code, Article 1577), and in the whole of the rest of the infraconstitutional legal system.
In the light of the whole legal system, the essential core of the concept was certainly made up of the entry into a contract between two persons of different sexes, and the purpose that, via that contract, those persons of different sexes wanted to form a family by fully sharing their lives.
And this full sharing of lives justified the imposition, as minimum instruments with which to pursue it, of certain state-related duties (related to the state of being married), such as those of respect, cohabitation, cooperation, assistance and fidelity (Article 1672 of the Civil Code).
Notwithstanding their nature as legal duties – duties which as such were configurable in relation to other types of contract – there can be no doubt that the difference in the spouses’ sexes lent a special nature and raison d’être to the duties of conjugal cohabitation and fidelity, which were quite different to those that it would be possible to find in a homosexual relationship.
It was the normative complex constituted by these two core elements that our constitutional legislator wanted to ensure for everyone, in a dual dimension of a fundamental right and an institutional guarantee, and did so by laying down in Article 36(1) that: “Everyone has the right to form a family and to marry under conditions of full equality”.
The verbal expressions ‘right to form a family and to marry under conditions of full equality’ are not used as a recognition of a certain, changeable social reality of the time when the constitutional text was written, but as ‘institutes’ or ‘institutions’ that existed throughout the legal order that the Constitution wanted to recognise, and in relation “to which, in any case, it seeks to recognise a special protection of its essence or its characteristic traits” (see José Carlos Vieira de Andrade, Os Direitos Fundamentais na Constituição Portuguesa de 1976, 2nd edition, p. 139).
Nor are they used as a descriptive concept, but rather as a normative one, which involves weighing up normative/regulatory issues in the constitutional text itself, as we can see from a systematic interpretation of the Constitution that is only possible with regard to norms.
The whole of Article 36 of the Constitution is structured around the presupposition of a heterosexual marriage, given that it is only in relation to a marriage that is conceived in these terms that it is possible to explain why the constitutional legislator needed to expressly enshrine in paragraph (3) that “Spouses have equal rights and duties in relation to their civil and political capacity and to the maintenance and education of their children”, and in paragraph (4) that “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 filiation”.
By laying down that spouses possess equal rights and duties in relation to the maintenance and education of their children and prohibiting any discrimination between children born in and outside wedlock, the constitutional legislator makes it very clear that the children it is referring to are the biological children and that the marriage to which it refers is that between persons of different sexes, inasmuch as under the laws of Nature, it is only in this case that it is possible for the hypothesis to come about.
Marriage between persons of the same sex cannot be the object of any provision for regulations to govern either the relations between the spouses with regard to “the maintenance and education of their children”, as an admissible consequent effect of marriage from the point of view of Nature, or the details of the hypotheses concerning children referred to above.
What is more, given the way in which they are worded, we can be sure that paragraphs (3) and (4) of Article 36 do not refer to adoptive children, inasmuch as the provision governing adoption, as a formula for or legal form of establishing the filiation relationship which is only addressed in those paragraphs in its biological dimension (constituted in or outside wedlock), is only made after those precepts, in paragraph (7) of the same Article, and as a status that is to “be regulated and protected in accordance with the law, which must lay down swift forms for completion of the respective procedural requirements” (a question that is never posed in relation to natural filiation).
It should be noted that whenever the 1976 Constitution wanted to distance itself from the normative concepts that existed in the system (including earlier constitutional ones) with regard to matters concerning the family, filiation and the relations between spouses, it made express provision for it and left no room for doubt.
This is what results from Article 36 with regard to the principle of equality between children born in or outside wedlock, and to spouses rights’ in relation to their civil and political capacity and the maintenance and education of their children, which are in manifest contrast with the previous regime (see Articles 6 and 12 to 14 of the 1933 Constitution).
At the same time, marriage is not seen as a descriptive concept anywhere in the rest of our legal system either.
Whenever, in the broadest possible range of legal domains, the ordinary legislator addressed marriage with a view to associating any form of legal effect with it, it always acted within the framework of a process of weighing up how to attribute those effects from the point of view of marriage as something that involves a contract between persons of different sexes who have constituted a family by fully sharing their lives.
The right to enter into matrimony, which the constitutional legislator thus adopted on the one hand as a fundamental right that is accorded to everyone, and on the other as an institutional guarantee, was attributed in relation to heterosexual marriage.
7 – It is clear that in an attempt to justify its thesis, the Ruling shields itself behind the literal wording of Article 36(2) of the Constitution, which says: “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”, and interprets the term ‘requisites’ as encompassing the legislative ability to choose whether or not the heterosexuality of the parties should be a requirement.
However, the term ‘requisites’ must be considered to be too short to justify a total redefinition of marriage, given that in the language of the positive law, it was never seen as concerning the notion (substance) of the contract that is referred to when that notion is expressly stated by the law.
Inasmuch as, according to the constitutional concept of marriage, the heterosexuality of the spouses is an essential element of the contract, the requisites can only refer to the presuppositions that must be fulfilled in order to enter into the type of contract in which the parties are a man and a woman who want to form a family by fully sharing their lives.
On top of this, this was how the Civil Code (see Articles 1577 and 1596 et seq.) regulated the matter when the original Constitution was passed, how it still continues to do so today, and how Article 13(1) of the 1933 Constitution also did so, in terms that were indeed more precise.
Article 36(2) of the Constitution charged the ordinary legislator with regulating the presuppositions for and the effects of marriage and its dissolution by death or divorce, but within its conception of marriage as a contract between persons of different sexes. It is evident that in the material field that is entrusted to the ordinary legislator, there is a very broad space for normative-constitutive discretion on the part of the latter, as long as it does not touch the ‘essence or the characteristic traits’ of marriage, as adopted by the constitutional legislator.
To see this entrustment to the ordinary law as offering the possibility of shaping one of the essential constituent elements of the institutional guarantee of marriage as it was when the original Constitution was passed, would be to remove the quality of a constitutional institutional guarantee from the concept of marriage and turn it into something that is valid solely as a fundamental right whose content has not been rendered operable by the Constitution, and remains to be so rendered by the ordinary legislator.
If we really understand what it is saying, the Ruling has reduced the dimension of a guarantee of the ‘institute’ of marriage to the sole obligation on the part of the ordinary legislator to always make provision, in people’s favour, for an ‘institute’ called marriage.
Apart from this, we should note that the Ruling suffers from a clear scientific incongruence when it refuses to accept that the content of the fundamental right to marriage be determined by the normative meaning that the concept possessed in the legal system when the text of the 1976 Constitution was decided, but at the same time uses the legal system to define its core by making it equivalent to “a relationship in which two people share their lives, which must be established by means of an act that is called by that name and has binding effects that are laid down by law, and must be free, unconditional and not subject to any set time limit”.
In reality, these elements can only be understood with reference to the legal system, given that no one can find them in Article 36 of the Constitution or any other constitutional precepts.
8 – Indeed, if there were any interpretative doubts as to the content of the Portuguese constitutional concept of marriage, even if they arose out of a systematic interpretation of Article 36(1), Article 16(2) of the Constitution means that they would have to be resolved with reference to the provisions of Article 16(1) of the Universal Declaration of Human Rights (UDHR), and the latter is clear when it says that: “Men and women of full age … have the right to marry and to found a family”.
The concept of marriage that is adopted here is certainly a normative one, inasmuch as it is stated by defining a man and woman’s right to marry one another (and to form a family, which paragraph  of the same Article considers to be a natural and fundamental element of society), as indeed the Ruling from which I am dissenting found itself obliged to accept, given both the wording and the systematic element of the interpretation of the UDHR itself.
Now, Article 16(2) of the CRP expressly adopted the UDHR – which has been in effect in the International Legal Order for many more years than our own 1976 Constitution – as a binding source of the content of the fundamental rights which the CRP recognises.
Nor is there any validity in the argument which the Ruling uses in order to deny the applicability of this UDHR norm, in a process in which the majority even calls the invocation of the interpretation of the constitutional norm governing marriage (Article 36) in accordance with the meaning of the UDHR norm an erroneous form of argumentation, saying that: “Article 16(2) of the Constitution only functions in bona parte and on the individual legal ‘side’ of the fundamental rights”.
In reality, Article 16(2) of the Constitution is clear when it says that: “The constitutional precepts concerning fundamental rights must be interpreted and completed in harmony with the Universal Declaration of Human Rights”.
As such, the task facing the constitutional interpreter is to know what is the normative content that paragraphs (1) and (2) of Article 36 of the Constitution incorporate when they talk about a “right to form a family and to marry under conditions of full equality” and say that the “law shall regulate the requisites for and the effects of marriage”.
In order not to be incongruent, the Ruling would necessarily have to admit that on the date on which the original Constitution was passed, the right to enter into matrimony did not possess the meaning set out in the UDHR, but the other, broader meaning which the Ruling now believes constitutes its essential core or the scope of its protection as a fundamental (subjective) right – that it be “the establishment of a relationship in which two people (regardless of their sexes) share their lives, which must be established by means of an act that is called by that name and has binding effects that are laid down by law, and must be free, unconditional and not subject to any set time limit”.
Only in this way (and without caring to know – because it would be unnecessary – whether such a meaning that conflicts with the UDHR would be legitimate) would it be possible to argue that one was in the presence of a fundamental right with a wider protective scope than that derived from the UDHR, which would mean that an invocation of the UDHR would not serve to explain or integrate the fundamental right to marry, but that its sense would instead be a restrictive one that would not fit within the intention that underlies the constitutional rule contained in Article 16(2).
However, the Ruling was not shameless enough to take this step, precisely because it was evident that when the original Constitution was passed, such an understanding would have been a reckless fiction, in that only the signs of the times later showed that there was a social need to regulate a new reality in family relations.
Secondly, I do not at all agree with the reductive statement in the Ruling, that Article 16(2) of the Constitution “only functions in bona parte and on the individual legal ‘side’ of the fundamental rights”.
This functionality would only make sense if the constitutional legislator had, without any room for any justified interpretative doubts, adopted the paradigm of a marriage contract that has now been included in the law – in which case the protective scope of the fundamental right and the institutional guarantee of marriage, when seen in these new terms, would be broader than that contained in the UDHR.
As I have already said, the Ruling was unable to go that far, and limited itself to stating a topical interpretation of the constitutional precept. This presupposes that the current constitutional-normative content could just as easily be that which the Ruling defends (the inclusion of homosexual marriage), as it could another one, if history were to have gone or to go in another direction, as the Ruling ends up expressly acknowledging when it says that at the time when the constitutional text was decided: “No one knew the problem even existed in either political or legal terms”.
From this perspective, at least and at the limit, in order to be congruent the Ruling could not then have failed to admit that, while even now it is more than possible that there are doubts as to the constitutional outline of the core of the fundamental right and the institutional guarantee of marriage – something that cannot be said of the moment in time when the constitutional legislator ‘took charge’ of the institution that existed in the then current system (be it the previous constitutional system which was preserved by Law no. 3/74 of 14 May 1974, or the infraconstitutional system)!
Now, if there were doubts about the essential core of the fundamental right and the institutional guarantee of marriage as enshrined in the original Constitution – doubts that would at least correspond to a scientific limit to the intelligibility of the Constitution and whose existence cannot be disregarded – they would, and this is still the case today, have to be resolved in accordance with Article 16(1) of the UDHR.
In reality, Article 16(2) of the Constitution does not only – as the Ruling says – require that the UDHR be applied in bona parte, but it also enshrines the principles of the interpretation and integration of the constitutional and ordinary-legal principles in relation to the fundamental rights in harmony with the UDHR (the principle of interpretation in conformity with the UDHR) (on the history of the insertion of this precept into our Constitution by the Constituent Assembly and the meaning of the text, see Jorge Miranda, “A Declaração Universal dos Direitos do Homem e a Constituição”, in Estudos sobre a Constituição, Volume 1, p. 60).
To this extent the precepts contained in Article 36(1) and (2) of the Constitution can only be understood with the meaning set out in the UDHR – i.e. in accordance with a fundamental right and a constitutional institutional guarantee (a nature that is accorded to it by the provision in our Constitution) that a man and a woman can, when they are of full age, marry one another (the meaning that emerges from the UDHR).
9 – Now, as José Carlos Vieira de Andrade (Os Direitos Fundamentais na Constituição Portuguesa de 1976, 2nd edition, p. 141) – whose doctrine the Ruling cites but does so without drawing the due conclusions from it – rightly says, “institutional guarantees must be seen as referring to the essence of the normative-legal complex and not to social reality itself, in such a way that (…) this is the scope with which they bind the legislator, allowing it a smaller or a larger space in which to freely shape the law, but always prohibiting it from destroying, decharacterising or disfiguring the institution (its essential core)”.
Reducing marriage – as the Ruling does, against the whole chorus of the constitutional and ordinary-law system – to the establishment of a shared-life relationship between two people, which is established by an act called ‘marriage’ that is regulated by the law, free, unconditional and without any set time limit, is to radically decharacterise the institutional guarantee contained in the Constitution. This would only be constitutionally legitimate if it were done by means of a constitutional revision.
The thing is that one cannot see therein any normative vestige, supported by any interpretative elements, that would say that the normative concept ‘marriage’ is reduced to what is now alleged to be its essential core, apart from an apparent degree of support from a certain understanding (erroneous, in the case in question) of the principle of equality.
Today, when we speak of marriage and the state of being married, we do not know what type of legally relevant relationship between the persons in question it is that we are talking about: whether it is a contract between two persons of different sexes that is entered into with the goal that, via the contract, those persons of different sexes want to form a family by fully sharing their lives – a family which normally possesses a procreational nature and as a rule is naturally extended, with ties between various generations, in which affection goes hand in hand with a call that is made by human nature itself; or if it is a contract between two persons of the same sex that is entered into with the goal of forming a family by sharing their lives, in which the relations between the two persons in question are essentially centred around a dimension of affection.
At this point it is important to note that a sharing of lives in a homosexual relationship is only achievable – given that it does not entail the complementarity of the sexes and the effects associated therewith, such as the possibility (not the necessity) of the existence of certain types of sexual relations and of procreation – to the extent that it refers to all those aspects of life that do not presuppose different sexes: to a shared life between those persons, yes, but only within the subjective and temporal universe of the gender that is united by the marriage.
The core of marriage has thus become the legal recognition of the existence of a declaration of the affection that exists between two people, without being associated with the normal way of forming a procreational family: the effects of homosexual marriage are limited to the temporal horizons of the persons who enter into it, and do not contribute to the future of the Legal Community that recognises it.
I do not see how one can use the circumstance that heterosexual marriage does not necessarily have to presuppose the occurrence of procreation, either because the persons concerned opt otherwise, or due to a physiological impossibility, to argue that the civil union between persons of the same sex must take place in order to safeguard the principles of human dignity, equality and privacy, with an appropriation of the institution of marriage as it is adopted in the legal system.
It does not become possible to place the situations in which these occurrences are never possible, de plano, as is the case in homosexual marriages, on the same level as heterosexual marriage, where such situations correspond to options or circumstantial physiological impossibilities (that are not inherent in the gender of the people in question).
The equality that is at stake here is nothing more than a simply formal equality, which the legislature has created as a legislative product.
10 – The intrinsic reason for heterosexual marriage lies in the possibility of the complementarity of the sexes within the very matrix of the human person: a sexual, physiological, psychological, sentimental and affectionate complementarity, along lines which match that which happens when human life is born, which only becomes possible according to that rule of complementarity, and whose normal development is also based, in accordance with the rules of normality, on that complementarity.
We are thus in a position in which the ordinary legislator has disfigured the fundamental right and the institutional guarantee of marriage that existed in both the constitutional system and the ordinary system.
What is more, it did so unnecessarily and disproportionately, in breach of the provisions of Article 18(2) and (3) of the Constitution.
In reality, by broadening the semantic sense of the institutional guarantee ‘marriage’, in such a way as to encompass homosexual unions, the ordinary legislator has diminished the normative scope of the fundamental right and the institutional guarantee of marriage, to the extent that the latter has come to include the normativity that it previously contained as just a part of itself.
It is possible to argue in favour of the creation of an ‘institute’ that would legally recognise the contract entered into by two persons of the same sex who want to form a family by sharing their lives, by attributing it legal effects that do not presuppose, according to the laws of Nature, that they be of different sexes, and do not lead to the decharacterisation of those that are necessarily postulated by marriage. Support for this position could be sought in the general clause included in the right to the free development of personality contained in Article 26(1) of the Constitution, which is constitutionally the right place to look when one seeks to fulfil all the goals whose pursuit is not rejected by the Constitution and by means of which the subject person sees fit to pursue his/her life.
The restriction of the scope of the fundamental right in question is thus constitutionally illegitimate.
The legislature then destroyed the value of the symbolism of marriage as an institutional guarantee granted to persons of different sexes, which had existed for thousands of years: in the Legal and Social Community, the state of being married pertained solely to persons of different sexes, and did so for at least around seven millennia.
Now, the symbolism or symbolic value of constitutional institutions is a relevant constitutional value. This is shown, quite apart from anything else, by the recognition which is afforded to the national symbols and the official language (Article 11 of the Constitution), but which we can also see associated, as an intrinsic value, with the constitutional provision that the relations between the various entities that exercise sovereignty should be interdependent (Articles 110 and 111 of the Constitution) and that each one should afford the proper respect and autonomy to the others, as well as in the various institutional material guarantees that are provided for in the Constitution (I am thinking, for example, of the autonomy of universities – Article 76 of the Constitution).
According homosexuals the right to unite their lives under the civil law, on the grounds of the principles of human dignity, equality and privacy, does not authorise the requirement that this entail the appropriation of the symbolic value of marriage and of the state of being married as an institution whose historical matrix means that it is specific to a union between persons of different sexes, thereby affecting the image of the existing institution.
The dilution or degeneration of the social value of the state of being married under a paradigm in which the spouses are of different sexes does not appear to be necessary for the fundamental rights of homosexual couples to be safeguarded, but instead serves the illegitimate purpose of confounding or hiding – at the cost of the very value of marriage, as a recognised union between a man and a woman, which has been acquired over a period of centuries – a part of the de facto reality that underlies access to that state.