Thursday, November 7, 2013

European Court Rules Civil Unions Cannot Exclude Same-Sex Couples

“We're still strivin' for the sky, no taste for humble pie”

In Case of Vallianatos and Others v. Greece, the European Court of Human Rights ruled by a vote of 16-to-1 on November 7, 2013, that Greece violated same-sex couples’ right to equality taken in conjunction with their right to respect for private and family life by excluding same-sex couples from the civil unions Greece adopted in 2008 for “de facto partnerships” of different-sex couples.  Each of the plaintiff couples was awarded 5000 Euros compensation for the non-monetary harms they suffered from the discriminatory exclusion.

The Greek civil unions law was enacted to provide a more flexible legal framework than marriage for cohabiting couples and the children of those couples who were raising children.  Other than Lithuania, Greece is the only country in the Council of Europe to “provide for a form of registered partnership designed solely for different-sex couples, as an alternative to marriage (which is available only to different-sex couples).”

The Court reaffirmed that same-sex couples “are in a comparable situation to different-sex couples as regards their need for legal recognition and protection of their relationship.”  Yet the civil unions law treats them differently based on their sexual orientation, the Court ruled.  (Thus far U.S. courts have largely recognized that marriage laws limited to different-sex couples embody sexual orientation discrimination, rejecting the shallow argument that they don’t because a gay man could marry a woman and a lesbian could marry a man.)   This sexual orientation discrimination required justification.  Greece chiefly relied on asserted interests in the protection of non-marital children and “strengthening the institutions of marriage and the family in the traditional sense.”  While the Court accepted that protecting “family in the traditional sense” was a legitimate aim, the sexual orientation discrimination in the law meant that the exclusion of same-sex couples from civil unions had to be “necessary” to serve those interests.

Looking at the actual provisions of the civil unions law, the Court concluded that it “was primarily aimed” not at regulating child-rearing but “at affording legal recognition to a new form of non-marital partnership.”  For example, different-sex couples could enter civil unions regardless of whether they had children.  Same-sex couples, in contrast, had no options under Greek law for having their relationship legally recognized.  This conflicted with an emerging trend in the law of European Union member countries, nine of which allowed same-sex couples to marry civilly and seventeen of which provided for “some form of civil partnership for same-sex couples.”

Judge Paulo Pinto de Albuquerque, a member of the Faculty of Law of the Catholic University of Portugal, dissented in part because he believed the same-sex couples should have been required to “exhaust their remedies” by first presenting their claims to the courts of Greece.

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