Marriage as a symbolic institution
RULING Nº 121/2010
8 of April of 2010
The essential core of the constitutional guarantee applicable to marriage is not damaged by abandoning the rule that spouses must be of different sexes; and extending the ability to marry to persons of the same sex does not conflict with the recognition and protection of the family as a “fundamental element of society”.
The Constitutional Court felt that although it is possible to consider that at the time when the Constitution was drafted and in the light of the social reality and legal context in which it emerged, the form of marriage it represents was between two persons of different sexes, it is also possible to conclude that the Constitutional legislator did not adopt any option that would prevent the institution of marriage from evolving. The fact that the right to enter into wedlock was configured as a fundamental right means that the legislator cannot remove marriage – seen as a legal institution intended to regulate situations in which persons live together, in recognition of marriage’s importance as a basic form of social organisation – from the legal order. However, the Constitution does not define the profile of the elements that go to make up the legal institution of marriage; instead, it expressly charges the ordinary legislator with maintaining the necessary link between the law and social reality. The Court was thus of the opinion that at each given moment in history, the ordinary legislator is responsible for the task of understanding what the dominant conceptions are and enshrining them in the legal order.
The President of the Republic asked the Constitutional Court to conduct a prior review of the constitutionality of norms contained in a Decree of the Assembly of the Republic which was sent to him for enactment and which permitted civil marriage between persons of the same sex. The request underlined the view that according to the Portuguese constitutional jurisprudence set out in Ruling no. 359/2009, the Constitution does not oblige the law to allow same-sex marriages, and that both prohibiting them altogether and providing for a different regime are legitimate. It argued that the constitutional concept of marriage is the historical one of a union between two persons of different sexes, and that there were grounds for doubt as to the material constitutionality of the norms in question, given that they could be seen as being in breach of the essence of the institutional guarantee which is innate in the concept of marriage that is accepted by the Constitution.
The Court felt that even though marriage enjoys the so-called ‘institutional guarantee’, under which the legislator cannot arbitrarily change the essential characteristics of a legal institution, it is not possible to use an institutionalistic way of thinking to reverse the sense of the guarantee and impose the preservation of the institution, in its existing form, from actions taken by the legislator, unless there is a direct conflict between those actions and the determination of the meaning of the fundamental right in question within the axiological framework of the system of fundamental rights. Now, while the establishment of a situation in which two people live together as a couple is a key structural element of the concept of marriage, without which that concept is decharacterised, the same thing cannot be said of the sexual diversity of the persons who want to be a part of that couple and submit themselves to the rules governing wedlock. The only thing for which that sexual diversity would be indispensable would be for participation in a couple on the sexual level to be able to lead to the birth of children who are biologically common to the members of the couple – a purpose which is not a requirement under either the Constitution or the ordinary law. The situation in which two people are joined together as a couple, in a relationship that is characterised by sharing and mutual assistance, on a common life path governed by the law, with a tendentially perpetual nature, is also available to two persons of the same sex. This in turn signifies that the legislator is not precluded from giving this means of freely developing one’s personality the form that currently applies to the protection of the relations between persons of different sexes, and from thereby enabling the interested parties to adopt the marriage format for themselves. Nor does extending marriage to same-sex spouses conflict with the recognition and protection of the family as a “fundamental element of society”, inasmuch as the Constitution undid the bond between the formation of a family and marriage, and offered its protection to the distinct family models which exist in our social reality. What is more, attributing the right to marry to persons of the same sex does not affect the freedom to enter into wedlock enjoyed by persons of different sexes, nor does it change either the rights and duties which apply to those persons as a result of their marriage, or the representation or image which they or the community may attribute to their matrimonial state.
The Court excluded the hypothesis of a breach of the principle of equality from the grounds for its decision. It said that the fact that the legislator is bound by this principle does not preclude the freedom to shape legislation; the legislator is responsible for identifying or qualifying the factual situations that will serve as the points of reference which are to be treated in the same, or different, ways. However, the Court then went on to emphasise that while there is no doubt that from a biological, sociological or anthropological perspective, a lasting union between two persons of the same sex and a lasting union between two persons of different sexes are different realities, from the legal point of view there are material grounds for treating them in the same way. It is reasonable for the legislator to be able to privilege the symbolic effect and optimise the anti-discriminatory social effect of the normative handling of this issue by extending the protection offered by the unitary framework of marriage to both these unions.
The Court therefore decided not to hold the norms before it unconstitutional.
The Ruling is accompanied by seven concurring opinions and two dissenting opinions. Three of the former argue that the Constitution not only permits same-sex marriage, but in fact requires it.
One of the dissenting opinions is essentially based on the view that making marriage between persons of the same sex fit within the current constitutional concept of marriage is only possible if one accepts the existence of a “constitutional mutation” that has made the difference between the spouses’ genders irrelevant to the Constitution. This constitutional mutation could only be operated if the constitutional legislator were to make and clearly adopt an express, prior choice within the overall framework of a constitutional revision, and could only be justified with reference to a change in the essential core of the guarantee enshrined in the Constitution; any justification cannot come from the prohibition on discrimination based on sexual orientation, which, to the opinion’s author, would constitute an illegitimate exegetic result. The second dissenting opinion underlines the view that the solution adopted in the Ruling represents a constitutional revision or mutation with regard to marriage, undertaken by the Constitutional Court itself, in violation of the constitutional principle of the separation of powers. According to the dissenting Justice, the constitutional concept of marriage is not a descriptive or factual one, nor is it a mere concept whose intention is to proclaim a constitutional programme. So, in a rigid, continental-type constitutional system like the Portuguese one, and in the light of the constitutional-law parameters, it cannot be considered to be an open concept. The opinion’s author also argues that extending the normative concept of marriage in such a way as to encompass both homosexual and heterosexual unions is not the only possible solution to the need to respect the principle of human dignity, the right to privacy, the right to equality, and distinction-free enjoyment of the various rights and freedoms in general, and particularly those based on gender or sexual orientation.
The Ruling contains extensive references to international documents – in particular the Universal Declaration of Human Rights – and the comparative jurisprudence of a number of European Union countries, other European countries, and other non-European common-law countries.
See Ruling no. 359/2009, which was sent to the Venice Commission as part of the set of Rulings that were selected for the Bulletin on Constitutional Case-Law no. 2009/2. It concerned a concrete review case initiated by a homosexual couple who had been denied the possibility of marriage on the basis of the applicable provisions of the Civil Code. The norm in question was not held to be unconstitutional.