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Same-Sex Marriage: An International Human Right

While the United States is debating a constitutional same-sex marriage ban, other countries are heading in the opposite direction.

Ewa Pagacz

Wednesday, April 14 2004, 9:14 AM

In defense of traditional marriage, President Bush has expressed his support for an amendment to the US Constitution, calling the union of a man and a woman "the most fundamental institution of civilization." Much of the rest of civilization begs to differ.

While the United States is debating a constitutional same-sex marriage ban, other countries are heading in the opposite direction. Same-sex relationships have been recognized in numerous countries in various forms, such as registered partnerships, civil pacts of solidarity, de facto marriage, or legal cohabitation. What these forms share is an understanding of same-sex relationships as a basic human right.

Under Article 12 of the European Convention on Human Rights, "men and women of marriageable age have the right to marry and to found a family, according the national laws governing the exercise of this right." In 2003, the European Parliament, in its annual European Union human rights report, recommended that homosexuals be allowed to legally marry and adopt children. It urged the EU to abolish all forms of discrimination against homosexuals, both legislative and de facto, including prohibition from entering into same-sex marriages and adopting children. The Parliament recommended that Member States more generally recognize non-marital relationships, both heterosexual and homosexual, adopt a broader legal definition of the family, and confer the same rights on partners in such relationships as to those who are married. Further, it stated that Member States should recognize persecution on the basis of sexual orientation or gender identity in the definition of the status of refugees and asylum seekers. Sweden has already extended its legislation, which makes racial hatred a crime, to cover victimization on grounds of sexual orientation.

In 2002 the European Court of Human Rights, in Goodwin v. United Kingdom, a case concerning a transsexual's right to marry, interpreted Article 12 as securing the fundamental right of a man and woman to marry and establish a family. It emphasized that the second element is not conditioned on heterosexuality, and inability of any couple to conceive or parent a child cannot be regarded as per se removing their right to enjoy the provision's first element. The court also pointed out the importance of wording choice by the authors of the Charter of Fundamental Rights of the European Union: a deliberate omission of a reference to "men and women" in the Article 9, giving all citizens the right to marry and to found a family.

In 2003 in Karner v. Austria, the European Court of Human Rights unanimously ruled that a homosexual who lost his tenancy when his partner died was a victim of unlawful discrimination. The court rejected the Austrian government's argument that the law allowing eviction of same-sex partner was necessary to "protect the family in the traditional sense," the main argument used in other countries by the religious right for continued discrimination against same-sex couples. The decision will have significant consequences for homosexuals in other EU countries. All benefits or rights granted by governments to heterosexual partners will in the future have to be granted to same-sex partners.

Same-sex marriage is by no means a novel idea in Europe. Legislation recognizing and providing equal rights to same-sex couples has reached different stages in EU member states. The Netherlands and Belgium have already recognized full same-sex marriage. Denmark, Finland, France, Germany, Portugal, Spain and Sweden allow homosexual couples to register their partnerships and to obtain various social benefits available to heterosexual couples.

By 2002, Denmark, Iceland, Netherlands and Sweden had passed legislation allowing homosexual couples to adopt children. The UK is currently involved in heated debate over a bill permitting adoption for unmarried couples, both homosexual and heterosexual. In Sweden, a bill permitting adoption was passed with overwhelming support. The bill is based on social research showing that homosexual couples are equally capable of caring for and rearing children as their heterosexual counterparts. In the Netherlands, legislation allowing same-sex couples to marry and adopt children has its roots in the Dutch constitution under which all citizens are entitled to equal rights, including marriage. Equally, homosexual couples are able to divorce through the courts. The Ministry of Foreign Affairs has sought to assure Dutch homosexual couples of legal safeguards in countries where such marriages are not recognized. Expanding on the Dutch government's position, in 2003, the European Parliament urged Member States to take necessary steps to enable homosexual couples to exercise freedom of movement within the Union.

Although legislation recognizing and giving equal rights to same-sex couples has not been uniform across Europe, substantial steps towards greater equality have been made in other EU countries. Taking a more limited approach, the UK recently designed a Civil Partnership Bill to give legal recognition to homosexual couples, a bill still under parliamentary consideration. Although couples will not be entitled to a "marriage" ceremony, they will be able to sign an official document at a registry office in front of a registrar and two witnesses.

This so-called Civil Partnership Registration Scheme closely approximates a marriage contract. If partnership breaks up, a formal, court-based process must be followed in order to dissolve it. Homosexual couples in the UK will get numerous rights, including visiting rights in hospitals, ability to gain parental responsibility for each other's children, recognition for immigration purposes, joint state pension benefits, obligation for mutual financial support, ability to claim compensation for fatal accidents or criminal injuries, recognition for inheritance and intestacy laws, right to register a partner's death and continue tenancy, exemption from inheritance tax on a partner's home, and exemption from testifying against each other in court. As Jacqui Smith, British minister for women and equality, stated, the new law is not about being politically correct but rather about bringing law and practice into line with the reality of people's lives.

Changes concerning legal recognition of same-sex relationships have been slower in predominantly Roman Catholic countries, especially given the Pope's declaration that the church regards homosexual acts to be "against natural law." But attitudes towards same-sex relationships are changing even in countries where a majority of population is Catholic. One such country, Lithuania, is considering changing its laws to allow same-sex marriages. Valentinas Mikelenas, a Lithuanian Supreme Court judge, has stated that sooner or later Lithuania will have to consider the rulings of the European Court of Human Rights in cases regarding homosexual marriages.

In overwhelmingly Roman Catholic Poland, the SLD — a social democratic party — is pressing for legalization of homosexual partnership. The legislation would recognize equal rights for homosexuals in Poland, granting parties similar rights as in marriage, except the right to adopt children.

Same-sex relationships are being recognized in both North and South America. They have already been recognized for some time in Argentina, and in March 2004 a judicial panel in the southern Brazilian state of Rio Grande do Sul ruled in favor of authorizing same-sex marriages. Their ruling gives same-sex couples broad rights in inheritance, child custody, insurance, and pension benefits.

In Canada in June 2003, Ontario's highest court stated that the definition of marriage as between heterosexuals only violates homosexual couples' rights under the country's constitutional document, the Charter of Rights and Freedoms, and homosexuals have the right to marry. Ontario is the third Canadian province to strike down the federal definition of marriage as between heterosexuals.

While supporters of a new US constitutional amendment locate the question in the context of moral values, there is a growing international understanding of this issue as one centered in human rights. The majority opinion in the US Supreme Court's Lawrence v. Texas decision, decriminalizing homosexual conduct, recognized the influence of international arguments by repeatedly citing decisions from the European Court of Human Rights. Justice Scalia condemns these European developments as "dangerous dicta," and cites xenophobic judicial opinion that "This Court...should not impose foreign moods, fads, or fashions. . . on Americans." To describe human rights concepts gaining broad international acceptance as dangerous dicta or strange fashion exposes the legal isolationism that characterizes support for the Bush administration's opposition to same-sex marriage. The influence of European legal developments supporting equal marriage rights has been profoundly constructive. European and international decisions on homosexuality and same-sex marriages are expanding human rights, whereas the Bush administration's constitutional initiative is headed in the opposite direction.

Ewa Pagacz holds a law degree, works in civil rights law in Arizona, and has contributed previous essays to Bad Subjects. She can be contacted at

Copyright © 2004 by Ewa Pagacz. All rights reserved.