Austria's Same-Sex Marriage Law: A Progressive Step Forward

Same-sex marriage has been legal in Austria since 2019, after the country's Constitutional Court ruled that the non-discrimination and equality provisions of the Constitution guarantee same-sex couples the right to marry. The ruling came into effect on 1 January 2019, making Austria the 15th European country to legalise same-sex marriage. The decision was praised by LGBTQ+ rights organisations, with lawyer Helmut Graupner stating that Austria was the first European country to recognise marriage equality for same-gender couples as a fundamental human right.

Austria's supreme court ruled in favour of same-sex marriage in 2019

On 4 December 2017, Austria's supreme court, the Constitutional Court, ruled in favour of same-sex marriage, stating that a law preventing same-sex couples from marrying violated the principles of equality and non-discrimination of the Constitution of Austria. The ruling took effect on 1 January 2019, making Austria the 24th country in the world and the 15th in Europe to legalise same-sex marriage nationwide.

The decision was made in response to a 2009 law that allowed registered partnerships for same-sex couples but prevented them from getting married. The court found that the distinction between marriage and registered partnership could no longer be upheld without discriminating against same-sex couples, as it forced them to disclose their sexual orientation in situations where it was not relevant, making them vulnerable to discrimination.

The ruling was praised by lawyer Helmut Graupner, who represented the two female plaintiffs in court. He applauded the Austrian court for recognising equality for same-sex couples as a "fundamental human right". The Homosexual Initiative Vienna (HOSI) also welcomed the decision, calling it a truly historic day.

The move divided the country's incoming coalition government, with the conservative People's Party (OVP) accepting the ruling, while the far-right Freedom Party (FPO) criticised it. Both parties had previously voted against same-sex marriage in parliament earlier that year. Despite the opposition, same-sex marriage became legal in Austria on 1 January 2019, as legislators took no steps to change the law before the deadline.

The ruling was made by the country's Constitutional Court

On 4 December 2017, the Austrian Constitutional Court (Verfassungsgerichtshof Österreich, VfGH) ruled that the non-discrimination and equality provisions of the Constitution of Austria guarantee same-sex couples the right to marry. The ruling took effect on 1 January 2019, making Austria the 15th country in Europe and the 24th in the world to allow same-sex couples to marry nationwide.

The ruling examined a 2009 law that allowed registered partnerships for same-sex couples but prevented them from getting married. The court found that the distinction between marriage and registered partnership could no longer be upheld without discriminating against same-sex couples. The court stated that the discriminatory effect was seen in the fact that people in same-sex partnerships had to disclose their sexual orientation even in situations where it was not relevant, and they were highly likely to be discriminated against.

The ruling specified that even though there were no substantial differences between the two legal institutions of marriage and registered partnership in Austria, the fact that two different legal institutions with different names exist constitutes discrimination. The court held that even though both legal institutions recognise “permanent unions between two equal persons to provide mutual support and consideration”, they are treated unequally. The court found that having two different legal institutions signified to the public that same-sex relationships are different from different-sex relationships, which discriminated against same-sex couples by forcing them to reveal their sexual orientation when it was irrelevant, thereby aggravating the historical discrimination against them.

The ruling was made in response to a marriage application by a same-sex couple that had been denied by the city of Vienna and the Administrative Court of Vienna on the grounds that section 44 of the Civil Code restricts marriage to persons of different sexes. The couple filed a complaint with the Constitutional Court alleging a violation of their right to marry and their rights to equal treatment and non-discrimination on the grounds of gender and sexual orientation, as guaranteed by the European Convention on Human Rights, the Federal Constitutional Law, and the Basic Law on the General Rights of Nationals. They also alleged a general violation of their rights by the application of an unconstitutional law.

The decision was influenced by the equality and non-discrimination provisions in the Constitution of Austria

On 4 December 2017, the Austrian Constitutional Court ruled that the non-discrimination and equality provisions of the Constitution of Austria guarantee same-sex couples the right to marry. The decision took effect on 1 January 2019, making Austria the 15th country in Europe to allow same-sex couples to marry nationwide.

The Austrian Constitutional Court examined a 2009 law that allowed registered partnerships for same-sex couples but prevented them from getting married. The Court found that the distinction between marriage and registered partnership could no longer be upheld without discriminating against same-sex couples. The Court stated that the discriminatory effect was seen in the fact that people in same-sex partnerships had to disclose their sexual orientation even in situations where it was not relevant, and they were highly likely to be discriminated against.

The Court's decision was influenced by the equality and non-discrimination provisions in the Constitution of Austria, which guarantee the right to equal treatment and non-discrimination on the grounds of gender and sexual orientation. These provisions are enshrined in the Federal Constitutional Law and the Basic Law on the General Rights of Nationals. The European Convention on Human Rights, which Austria has ratified, also guarantees the right to respect for private and family life, freedom from discrimination, and the right to marry and found a family.

The Austrian Constitutional Court found that the provisions of the Civil Code and the Registered Partnership Act that restricted marriage to persons of different sexes and registered partnerships to persons of the same sex, respectively, violated the prohibition of discrimination in the equality clause of the Federal Constitutional Law. The Court held that even though there are no substantial differences between marriage and registered partnership in Austria, the fact that two different legal institutions with different names exist constitutes discrimination. The Court stated that having two different legal institutions for different-sex and same-sex couples signifies to the public that same-sex relationships are different from different-sex relationships, which is discriminatory.

The decision of the Austrian Constitutional Court was also influenced by the interpretation of the European Convention on Human Rights by the European Court of Human Rights. In the case of Karner v. Austria in 2003, the European Court of Human Rights found that Austrian law, which provided that family members had a right to succeed to a tenancy, violated the anti-discrimination provisions of the European Convention on Human Rights by discriminating against same-sex couples in tenancy rights. Since this decision, cohabiting same-sex partners in Austria have been entitled to the same tenancy rights as unmarried cohabiting opposite-sex partners.

The ruling was praised by LGBTQ+ organisations such as Homosexual Initiative Vienna (HOSI)

On the 4th of December 2017, Austria's Constitutional Court ruled that the country's non-discrimination and equality provisions of the Constitution guarantee same-sex couples the right to marry. The ruling was praised by LGBTQ+ organisations such as Homosexual Initiative Vienna (HOSI), who welcomed the decision, stating that they were "very happy" and wanted to "use the opportunity for a renewed call for a fundamental reform of marriage". HOSI's chairman, Christian Hoegl, celebrated the ruling as a victory for equality, with lawyer Helmut Graupner echoing this sentiment in a Facebook post:

> "Austria is the first European country to recognize marriage equality for same-gender couples as a fundamental human right. All the other European states with marriage equality introduced it (just) the political way."

The ruling took effect on the 1st of January 2019, making Austria the 15th country in Europe and 24th in the world to legalise same-sex marriage. This decision was the culmination of years of activism and legal challenges by LGBTQ+ organisations and their allies, bringing Austria in line with many other European nations on the issue of marriage equality.

The ruling was particularly significant as it recognised the inherent discrimination in maintaining separate institutions of marriage and registered partnership. The court found that having two different legal institutions with different names reinforces the idea that same-sex relationships are distinct from different-sex relationships, thereby forcing individuals to disclose their sexual orientation in situations where it is irrelevant and creating a risk of discrimination.

The decision was also praised by Austrian President Alexander Van der Bellen, who supports LGBTQ+ rights as human rights. In 2019, he became the first head of state to participate in the EuroPride parade in Vienna. This, along with the ruling, reflects a broader shift in Austrian society towards greater acceptance and equality for the LGBTQ+ community.

Same-sex couples in Austria have been able to enter registered partnerships since 2010

Registered partnerships granted same-sex couples several, but not all, of the rights, benefits, obligations, and responsibilities of marriage. For example, registered partners were entitled to the same labour, immigration, pension, tax, and civil law rights as married couples. They could also take a common surname. However, there were still 72 differences between registered partnerships and marriage, including adoption rights.

In 2013, the Constitutional Court ruled that the registered partnership law was partially unconstitutional, broadening the rights of registered partners. This was followed by a ruling from the European Court of Human Rights, which affirmed the right of a partner in a same-sex union to adopt their partner's biological child. As a result of these rulings, the Austrian Parliament passed the Adoptionsrechts-Änderungsgesetz 2013, allowing stepchild adoption by same-sex couples, which came into force in 2013.

In 2015, the Constitutional Court found the existing adoption laws to be unconstitutional and ordered that they be changed by 31 December 2015 to allow joint adoption by same-sex couples. This was enforced by Justice Minister Wolfgang Brandstetter, who announced that the ban on joint adoption would be lifted on 1 January 2016.

While registered partnerships provided same-sex couples with many of the same rights as married couples, there were still some key differences and restrictions. In 2016, the ÖVP-led ministries agreed to remove two prominent distinctions: allowing registered partnerships to be registered at the Standesamt (municipal civil registration) and granting registered partners the same family name as married couples.

Despite these advancements, same-sex couples in Austria continued to face some challenges and discrimination. For example, in 2018, the Ministry of the Interior instructed registries not to perform same-sex marriages if one spouse was from a country that had not legalised same-sex marriage. This directive was controversial and was challenged in court by the Legal Committee Lambda (Rechtskomitee Lambda; RKL). In response, MP Irmgard Griss introduced a bill to amend the Private International Law Act, which was passed by the National Council in 2019, allowing same-sex marriages regardless of the spouse's country of origin.

Overall, the recognition of registered partnerships for same-sex couples in Austria since 2010 has been a significant step towards equality and the protection of the rights of LGBTQ+ individuals in the country. However, the journey towards full equality has been gradual, with ongoing efforts to address remaining legal and social barriers.

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