Constitutional Court Rules on Marriage Equality
24 February 2016
Children take government to court over their parents´ marriage ban
Austrian children with two fathers or two mothers are compulsory illegitimate because their parents are not allowed to marry each other. Five such children, together with their parents, have been taking the federal government to the courts over their parents´marriage ban; to allow their parents to marry and themselves to become legitimate children as their peers with one father and one mother are. Last December the Vienna Administrative Court - based on weird reasoning - dismissed the cases. The families turned to the Constitutional Court whose ruling is expected for later this year.
Austria today grants identical rights to found a family to same-gender couples as it does to opposite-gender couples (second-parent-adoption, joint adoption, medically assisted procreation, automatic co-parenthood in registered lesbian couples and recognition of motherhood in unrgistereed lesbian couples like recognition of fatherhood over illegitimate children).
Nevertheless their children are compulsory illegitimate. As their parents, different then the parents of their peers, are banned from marrying, just because these parents are two mothers or two fathers instead of one mother and one father.
Unique in the world
Austria is the only country in the world (!) with such a state of law. All other countries in the world, which grant same-gender couples full adopton rights, as a matter of course, let the parents of these children marry.
In 2012 the Austrian Constitutional Court found the marrriage-ban constitutional arguing that civil marriage is "oriented towards the ability, in principle, to parent", what distinguishes it from "relationships of another kind" (VfGH 09.10.2012, B 121/11, B 137/11 Rz 32). This argument has lost its basis since those days.
Back in 2012 same-gender couples in Austria had no (!) right whatsoever to found a family. Today they have absolutely identical (!) rights. Today same-gender couples, under Austrian law, are equally "oriented towards the ability, in principle, to parent". The cildren in the five families now sueing the government have two full and equal legal parents just as children with a father and a mother.
The European Court of Human Rights already back in 1986 has found a violation of childrens rights in the case of a child whose parents were banned from marriage (Johnston v IRL). Back these days marriage could not be divorced in Ireland and the father had still been married to another woman then the child´s mother.
"not yet in all party platforms"
21 December 2015 the Vienna Administrative Court dismissed the cases. With a quite weird reasoning: while societal attitudes and the legal position of same-sex couples would have changed dramatically the call for same-sex marriage has not yet found its way in the party-platforms of all (!) political parties ...
The families turned to the Constitutional Court whose ruling is expected for later this year.
"Austria made the second, third, fourth and fifth step before the first", says Dr. Helmut Graupner, first signatory of the citizens initiative Ehe Gleich! (www.ehe-gleich.at) and counsel of the five families, "The marriage ban must fall, for the sake of the children".