Same-Sex Couples before National, Supranational and International Jurisdictions

When it comes to sexual orientation and the recognition of same-sex couples, there is no doubt that Western Europe, the Americas, and several other parts of the world find themselves in the middle of a human rights revolution. This thoroughly researched and informative book expertly charts the progress of this revolution across an impressive array of jurisdictions, national, international, and supranational, with a particular emphasis on the role played by the judiciary in advancing the legal recognition of same-sex couples. The text contains twenty-three expertly written chapters, each illuminating in its own right, but collectively providing a comprehensive and enlightening overview of the state of legal developments in this area. The editors and individual contributors offer a myriad of compelling insights into the (recent and historical) developments in this context, across a broad range of jurisdictions, international and supranational bodies, as well as per spectives from the complex arena of private international law.

According to Friðriksdóttir, as early as 1973 the Swedish Parliament formally declared that same-sex cohabitation was “a perfectly acceptable form of family life,”¹ even though most European jurisdictions at that time undoubtedly did not share this view. In 1989 Denmark became the first country in the world formally to register same-sex unions,² while in 2001 the Netherlands blazed a trail by becoming the world’s first sovereign state to permit same-sex couples to marry.³ At the time, it might have been tempting to say that these jurisdictions were outliers and that such reforms were likely to be confined to a small cohort of particularly progressively minded states.⁴ Nonetheless, while access to marriage for same-sex couples is still limited to a small number of jurisdictions worldwide, the trend toward legal recognition of same-sex couples, at least in western states and on the American continents, is undeniable. Jurisdictions one might never have thought of as especially freethinking when it comes to socio-sexual issues have adopted or are contemplating laws extending recognition and protection to same-sex couples. Perhaps this trend is best exemplified by Ireland’s recent decision to entrench a right to marry a person of the same sex within its Constitution, making Ireland (a country historically conservative on socio-sexual issues) the first sovereign state in the world to extend marriage to same-sex couples by referendum.⁵ The overwhelming support for this outcome (62% of those voting, totaling 1.2 million citizens, voted in favor, on a high turnout) readily highlights how much has changed in this regard. As Gráinne de Búrca notes in her foreword, there remain many parts of the world where it is still extremely challenging, even dangerous, to be in a same-sex relationship. She goes on to remark, however, that “. . . [i]t seems as though—at least in certain parts of the world—a tipping point has been reached in relation to legal recognition and protection for the rights of same-sex couples.”⁶

Considering the scope and pace of change in attitudes towards same-sex couples, the editors of this impressive collection, Daniele Gallo, Luca Paladini, and Pietro Pustorino, had set themselves the most formidable of tasks. Tackling the issue of equal marriage and relationship recognition at the present time is like painting a moving train. The editors and contributors have clearly managed to accomplish their goal of providing a timely and informative account of the international developments with admirable skill and proficiency.

Taking into account the range of jurisdictions involved (almost 40 domestic jurisdictions are addressed, together with several international and supranational entities), the editors can be excused for omitting some countries from their analysis. The jurisdictions that have been chosen offer a wide-ranging, suitably contrasting, and insightful survey of developments in this field. European jurisdictions are relatively comprehensively addressed, as are the Americas, South Africa, Australia, and New Zealand. There is a fair balance between common law and civil law states and a good mix of developments in both progressive and more conservative jurisdictions, although the northern hemisphere, and particularly Europe, perhaps understandably, receive the most attention. A useful contrast is drawn between jurisdictions in which considerable progress has been made and others which are still lagging behind and where the cultural and political landscape is more challenging for those asserting LGBT rights.

It is difficult to do justice, in this review, to the enormity of the combined achievements of the authors, although a summary of each of the contributions might usefully be offered. Graziella Romeo (chapter 2) and Antonio D’Aloia (chapter 3) each provide a detailed and engaging critique of the developments in the United States, at state and federal levels, respectively. The chapters predate the very recent decision of the US Supreme Court in Obergefell v. Hodges,⁷ ruling that the exclusion of same-sex couples from marriage infringed the due process and equality provisions of the US Constitution’s Fourteenth Amendment (thus extending a constitutional right to marry a person of the same sex across the entire United States). Romeo’s and D’Aloia’s contributions are nevertheless highly informative and relevant as they trace the evolution in judicial approaches that culminated in this momentous verdict, and highlight the often exceptionally activist approach of the US courts in securing LGBT rights. Edmondo Mostacci (chapter 4) offers a comparative survey of the different routes to equal marriage taken by Canada and South Africa, emphasizing that there is no “one-size-fits-all” model for achieving the desired reform. Tackling no less than eleven jurisdictions, José Miguel Cabrales Lucio (chapter 5) provides an impressively expansive survey of contrasting developments in Mexico and Central and South America. Olivia Rundle (chapter 6) offers an insightful and well-researched account of developments in New Zealand and Australia (the latter country is still wrestling with the issue of equal marriage; the Australian government plans to hold a plebiscite on the topic). While Hrefna Friðriksdóttir (chapter 7) skillfully surveys the state of play in the Nordic countries, Aidan O’Neill (chapter 8) offers an extensive account of developments in the UK. Focusing on Croatia, Hungary, Slovenia, and Poland, Adam Bodnar and Anna Śledzińska-Simon (chapter 9) chart the more challenging path to reform in Eastern Europe where, despite some notable advances, social and political resistance to change is still evident. Philippe Reyniers (chapter 10) adeptly critiques the legal position in France and Belgium, highlighting the limited, deferential role played by the national courts. Giorgio Repetto (chapter 11) sheds light on the situation in Germany, Austria, and Switzerland, all of which offer registered partnership schemes to same-sex couples, but continue to hold out against equal marriage in favor of a “separate but equal” approach. Tiago Fidalgo de Freitas and Diletta Tega (chapter 12) present an illuminating account of the fortunes of same-sex couples in Spain and Portugal, where marriage is permitted, and Italy, where, despite considerable resistance, there has been some recent movement towards civil unions. Spyridon Drosos and Aristoteles Constantinides (chapter 13) highlight the developments in Cyprus, which introduced civil unions in November 2015, and Greece, where, prompted by the decision of the European Court of Human Rights (ECtHR) in Vallianatos v. Greece,⁸ civil partnerships were extended to same-sex couples in December 2015.

This collection of essays also addresses developments at the international and supranational level. The contributions by Roberto Virzo (on the private international law dimensions of the formation of same-sex unions, chapter 14), Giacomo Biagioni (on recognition of foreign unions, chapter 15), and Matteo M. Winkler (on the transnational movement of same-sex families, chapter 16), collectively address the challenging issues of private international law. Given the great variations in the recognition of same-sex couples across the different jurisdictions, and the increased international mobility of individuals and families, issues of cross-border recognition and free movement can prove to be especially vexed. Of note, also, are the exceptionally useful chapters on developments before international and supranational bodies. Pietro Pustorino (chapter 17) offers a nuanced critique of the jurisprudence of the ECtHR on marriage, with particular reference to its key decision in Schalk and Kopf v. Austria (finding that the Convention did not require contracting states to allow same-sex couples to marry).⁹ While Francesco Crisafulli (chapter 18) tackles aspects of ECtHR jurisprudence on issues other than marriage, Laura Magi (chapter 19) assesses the caselaw of the Inter-American Court of Human Rights, with particular emphasis on the groundbreaking decision in Atala Riffo v. Chile,¹⁰ where the Court ruled that denying a mother custody of her children on the grounds of her sexual orientation infringed (inter alia) the equality and non-discrimination provisions of the American Convention on Human Rights, as well as the right to a private and family life thereunder.

Free movement of same-sex couples within the EU, and in particular the potential future role of the Court of Justice of the European Union (CJEU) in this regard, are examined in a compelling study by Jorrit Rijpma and Nelleke Koffeman (chapter 20). The authors highlight the legal uncertainty still surrounding free movement of rainbow families, and exhort the CJEU to do more to secure the fundamental right to free movement and mutual recognition of relationship status. Massimo F. Orzan (chapter 21) offers an overview of EU law relating to employment benefits for same-sex couples (both of EU staff members and more generally). Daniele Gallo (chapter 22) adeptly examines the position of gay and lesbian staff members of international organizations, specific ally the UN and the International Labour Organisation. Luca Paladini (chapter 23) provides a perceptive assessment of the fate of same-sex couples before the UN Human Rights Committee, and in particular in the cases of Young v. Australia¹¹ and Casadiego v. Colombia,¹² which addressed breaches of the International Covenant on Civil and Political Rights (ICCPR) in relation to pension benefits for surviving same-sex partners.

The contributors to this volume successfully bring together an impressive wealth of information, commentary, and analysis. The book focuses on judicial developments, with the majority of the chapters prioritizing the different attitudes and approaches of the judiciary in national and international/supranational legal orders. Nonetheless, throughout the book, the authors also illustrate the importance of legislative endeavors and the interplay between parliamentarians and judges.

A general distinction may be drawn between jurisdictions in which change has come about primarily by judicial means and those in which the parliamentary route has proved more fruitful. In some jurisdictions, it is clear that the courts have played a leading role in achieving reform. In others, by contrast, the judiciary have deferred more readily to the legislative will, proving less willing to adopt an activist role and preferring to follow rather than lead. Indeed, while the courts feature prominently in many chapters, in others there are comparatively few cases on which to draw. For instance, while Romeo and D’Aloia each illustrate the central importance of litigation in the United States, Friðriksdóttir’s survey of the Nordic countries reveals a marked lack of reliance on litigation by citizens in those states and a correspondingly high degree of confidence and trust in the democratic process. The theme of judicial restraint also features prominently, particularly in France, Belgium, Spain, Portugal, and Italy. There is also a not able degree of judicial deference in Australia and New Zealand when compared with the US and Canada.

There are, of course, considerable strengths in the legislative approach, involving reform through parliamentary action. Legislative reform in this context tends to be more secure and more democratically legitimate. It is less susceptible to political backlash than activist court decisions: California’s Proposition 8, for instance, was effectively a direct response to the California state Supreme Court’s verdict in Re Marriage Cases,¹³ while the federal Defense of Marriage Act (DOMA) in the United States was largely prompted by verdicts in Hawaiian courts that were initially favorable to equal marriage.¹⁴ Nonetheless, throughout the collection, the authors emphasize the vital contribution that courts may make in advancing reform and highlighting particular injustices, within the limits of their judicial role. While there are valid concerns around the lack of democratic legitimacy of activist judicial approaches, exclusive reliance on parliamentary means to achieve reform necessarily entails requiring minorities to win over majorities on issues of human rights that ideally should not be the subject of majority rule. As Jackson J compellingly observed in the US Supreme Court in West Virginia Board of Education v. Barnette:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. . . . [F]undamental rights may not be submitted to a vote; they depend on the outcome of no elections.¹⁵

It is thus arguable that, while courts must be careful not to usurp the legislative role, excessive judicial deference to democratically elected politicians, in the context of addressing issues of minority human rights, may not be wholly appropriate.

The same point may be made even more emphatically in respect of referendums and plebiscites on equal marriage, as occurred recently in Ireland. In this vein, Cabrales Lucio highlights a decision of the Costa Rican Supreme Court stalling a referendum that challenged draft laws that proposed to introduce same-sex civil unions. It did so on the basis that this was a legislative matter inappropriate to popular vote, in that the referendum would allow “a non-gay majority to decide on the rights of a minority group . . . ,” thereby “violat[ing] the principle of human dignity.”¹⁶ As Encarnación has observed elsewhere, “. . . there is something inherently unseemly about putting the civil rights of any group, especially a historically oppressed one, to a popular vote.”¹⁷ While the outcome of the Irish marriage referendum was exceptionally powerful in its affirmation of same-sex couples and LGBT people more generally (and unassailable in terms of its democratic legitimacy), putting the rights of a vulnerable minority in the hands of the electorate is an immensely problematic approach to human rights questions.

This is not to say, however, that courts alone should necessarily have carte blanche to dictate policy in this area, to the exclusion of legislatures. One might say, rather, that judges can play an important role, alongside legislatures, in nudging states towards recognition by highlighting the human rights implications of non-recognition. Some deference towards the legislature (as the democratically elected arm of government) may ultimately be constitutionally necessary and indeed prudent, particularly given the sensitive and controversial nature of this issue. Nonetheless, in matters of human rights as they pertain to minorities, a strong case can be made for robust judicial oversight, particularly where legislatures are reluctant to budge in the face of popular aversion to homosexuality.

The comparative nature of this book is particularly impressive and stimulating. No two states are entirely alike in terms of ex perience. While intriguing parallels emerge, it is clear that the paths to reform can diverge greatly. The authors are particularly mindful of the cultural, political, and social differences that shape the legal landscape in different jurisdictions: compare, for instance, the Nordic countries, where there is a great degree of trust in the legislature and government, and the United States, where much more emphasis is placed on the courts as vehicles for reform. Nonetheless, some common themes emerge, the key being that change, even in more progressive states, tends to be incremental. There is, it seems, no fast track to full legal equality; rather, progress tends to come in incremental steps. Another key message is that, while the courts may often defer to the political and legislative process, judicial decisions can help foster (though in some cases hinder) progress towards a more equal society, sometimes in very powerful ways. The court process can, in particular, publicly highlight the injustice of non-recognition in a very compelling manner and humanize the issues by focusing on the plight of specific litigants. The publicity associated with litigation, even where the judicial route is unsuccessful, can also prompt wider conversation about recognition.

Olivia Rundle offers another very pertinent lesson in chapter 6: equal treatment is not necessarily achieved simply by applying heterosexual norms and standards to same-sex couples. The specificity of the experiences and perspectives of same-sex couples cannot be ignored when assessing whether these couples meet standard criteria, for instance, for cohabitation.

An interesting question that deserves further attention concerns the extent to which the path to legal recognition of same-sex couples in certain jurisdictions has been spurred on by developments in other places. Was it a mere coincidence, for instance, that the introduction of same-sex marriage in the Netherlands was followed shortly thereafter in neighboring Belgium? In Ireland’s case, the adoption of civil partnership in Northern Ireland in 2004¹⁸ (along with other developments, including litigation¹⁹) helped jump-start a national conversation about same-sex couples south of the border:²⁰ same-sex couples legitimately asked why they could, in 2004, have a civil partnership in Belfast but not 166 km down the road in Dublin?²¹ Likewise, the recent adoption of marriage for same-sex couples in the Republic of Ireland, England and Wales, and Scotland has put added pressure on Northern Ireland to follow suit.²² It is interesting to speculate about whether a critical mass of states recognizing same-sex couples may prompt others to contemplate a similar move (or indeed encourage the ECtHR to compel such measures),²³ or if it may instead harden resistance, as has happened, for instance, in Russia and parts of Africa. The evidence in this collection suggests that there is now, at least in a sizeable part of the western world, an emerging consensus that some form of relationship recognition for same-sex couples is necessary and appropriate. As this book ably illustrates, recognition is no longer confined to outliers. Though the conversation is far from over, and tough challenges still face the LGBT community worldwide, the momentum for change is undeniable.

Individual contributions

Daniele Gallo, Luca Paladini, and Pietro Pustorino, Same-Sex Couples, Legislators and Judges. An Introduction to the Book

Graziella Romeo, The Recognition of Same-Sex Couples’ Rights in the US Between Counter-Majoritarian Principle and Ideological Approaches: A State Level Perspective

Antonio D’Aloia, From Gay Rights to Same-Sex Marriage: A Brief History Through the Jurisprudence of US Federal Courts

Edmondo Mostacci, Different Approaches, Similar Outcomes: Same-Sex Marriage in Canada and South Africa

José Miguel Cabrales Lucio, Same-Sex Couples Before Courts in Mexico, Central and South America

Olivia Rundle, Following the Legislative Leaders: Judicial Recognition of Same Sex Couples in Australia and New Zealand

Hrefna Friðriksdóttir, The Nordic Model: Same-Sex Families in Love and Law

Aidan O’Neill, A Glorious Revolution? UK Courts and Same-Sex Couples

Adam Bodnar & Anna Śledzińska-Simon, Between Recognition and Homophobia: Same-Sex Couples in Eastern Europe

Philippe Reyniers, Same-Sex Couples in France and Belgium: The Resilient Practice of Judicial Deference

Giorgio Repetto, At the Crossroads Between Privacy and Community: The Legal Status of Same-Sex Couples in German, Austrian and Swiss Law

Tiago Fidalgo de Freitas & Diletta Tega, Judicial Restraint and Political Responsibility: A Review of the Jurisprudence of the Italian, Spanish and Portuguese High Courts on Same-Sex Couples

Spyridon Drosos & Aristoteles Constantinides, The Legal Situation of Same-Sex Couples in Greece and Cyprus

Roberto Virzo, The Law Applicable to the Formation of Same-Sex Partnerships and Marriages

Giacomo Biagioni, On Recognition of Foreign Same-Sex Marriages and Partnerships

Matteo M. Winkler, Same-Sex Families Across Borders

Pietro Pustorino, Same-Sex Couples Before the ECtHR: The Right to Marriage

Francesco Crisafulli, Same-Sex Couples’ Rights (Other than the Right to Marry) Before the ECtHR

Laura Magi, Same-Sex Couples Before the Inter-American System of Human Rights

Jorrit Rijpma & Nelleke Koffeman, Free Movement Rights for Same-Sex Couples Under EU Law: What Role to Play for the CJEU?

Massimo F. Orzan, Employment Benefits for Same-Sex Couples: The Case-Law of the CJEU

Daniele Gallo, International Administrative Tribunals and Their Non-Originalist Jurisprudence on Same-Sex Couples: ‘Spouse’ and ‘Marriage’ in Context, Between Social Changes and the Doctrine of Renvoi

Luca Paladini, Same-Sex Couples Before Quasi-Jurisdictional Bodies: The Case of the UN Human Rights Committee

1

Standing Committee on Civil Law Legislation, Report (bet.) 1973:LU20, at 116 (Sweden); quotedin Hans Ytterberg, “From Society’s Point of View, Cohabitation Between Two Persons of the Same Sex is a Perfectly Acceptable Form of Family Life”: A Swedish Story of Love and Legislation, in Legal Recognition of Same-Sex Partnerships 427, 428 (Robert Wintemute & Mads Andenaes eds., 2001); Hrefna Friðriksdóttir, The Nordic Model: Same-Sex Families in Law and Love, inSame-Sex Couples before National, Supranational and International Jurisdictions 161, 170 (Daniele Gallo, Luca Paladini, & Pietro Pustorino eds., 2014).

2

Lov nr 372 af 01.06.1989 om registreret partnerskab, (D/341- H- ML Act no. 372 of June 1, 1989 on registered partnership) (Denmark); Friðriksdóttir, supra note 1, at 167.

3

De Wet Openstelling Huwelijk (An Act on the Opening Up of Marriage) of Dec. 21, 2000, Official Journal of the Kingdom of the Netherlands, Stb. 2001, 9 (Netherlands); Dutch Legislators Approve Full Marriage Rights for Gays, N.Y. Times, Sept. 13, 2000, http://www.nytimes.com/2000/09/13/world/dutch-legislators-approve-full-marriage-rights-for-gays.html.

4

Indeed, at the time of the Dutch vote, the BBC remarked that “. . . some opponents to [sic] the bill fear that the Netherlands’ position at the vanguard of gay rights will isolate the country.” See Dutch Legalise Gay Marriage, BBC News, Sept. 12, 2000, http://news.bbc.co.uk/2/hi/europe/922024.stm.

5

Const. of Ireland 1937, Art.41.4 (as inserted by the Thirty-Fourth Amendment, 2015). The Irish Constitution may be amended only by referendum. See Fergus Ryan, Ireland’s Marriage Referendum: A Constitutional Perspective, DPCE-Online (2015–12), available athttp://www.dpce.it/dpce-online-2-2015/.

6

Gráinne de Búrca, Foreword, inSame-Sex Couples, supra note 1, v, at v.

7

576 US ____, June 26, 2015.

8

App. Nos. 29381/09 and 32684/09, Nov. 7, 2013.

9

App. No. 30141/04, June 24, 2010.

10

Karen Atala Riffo and daughters v. the State of Chile, Inter-Am. Ct. H.R., Case 12.502, Feb. 24, 2012.

11

App. No. 941/2000, Aug. 6, 2003.

12

App. No. 1361/2005, Mar. 30, 2007.

13

43 Cal.4th 757 (2008). Re Marriage Cases concluded that same-sex couples had a right to marry under the California state Constitution. Proposition 8 sought to negate this outcome.

14

In Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993) and Baehr v. Miike, Circuit Court for the 1st Circuit, Hawaii No. 91–1394 (1996), the Hawaiian courts ruled that the exclusion of same-sex couples from marriage imper missibly infringed the state Constitution’s equal protection clause. The Hawaiian Constitution was amended in 1998 to confine marriage to opposite-sex couples, following which the original judgment was reversed: Baehr v. Miike, No. 20371 (Supreme Court of Hawaii, Dec. 9, 1999).

15

319U.S. 624, 638 (1943). Likewise, in Obergefell et al. v. Hodges et al., 576 US ____, June 26, 2015, at 24 of the Opinion of the Court, Kennedy J remarked that “the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights.” Individuals who are harmed, he added, “. . . need not await legislative action before asserting a fundamental right.”

16

See Constitutional Chamber of the Supreme Court, App. No. 10-008331-0007-CO, Decision no. 2010013313; José Miguel Cabrales Lucio, Same-Sex Couples Before Courts in Mexico, Central and South America, inSame-sex Couples,supra note 1, 93, at 107.

17

Omar Encarnación, Ireland’s Referendum, However Inspiring, is not a Step Forward for Gay Rights, Irish Times, May 26, 2015, http://www.irishtimes.com/opinion/ireland-s-referendum-however-inspiring-is-not-a-step-forward-for-gay-rights-1.2225587.

18

See the Civil Partnership Act 2004 (c. 33) (UK).

19

See Zappone and Gilligan v. The Revenue Commissioners [2006] IEHC 404 (Irish High Court).

20

The provisions of the Good Friday Agreement of 1998 requiring equivalence of human rights protection in both Northern Ireland and the Republic of Ireland arguably provided some impetus for the ultimate adoption of civil partnership in the Republic of Ireland. SeeColm Ó Cinnéide, Equivalence in Promoting Equality (2005).

21

A relatively comprehensive form of civil partnership for same-sex couples was introduced in the Republic of Ireland in 2011 by the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (No. 24 of 2010).

22

In November 2015, a majority of members of the Northern Ireland Assembly voted in favor of extending marriage to same-sex couples, but the move was blocked by a “petition of concern” asserting that this move was not supported by the Unionist community. See Henry McDonald, Northern Ireland Assembly Votes to Legalise Same-sex Marriage, The Guardian, Nov. 2, 2015, http://www.theguardian.com/uk-news/2015/nov/02/northern-ireland-assembly-votes-to-legalise-same-sex-marriage.

23

Indeed, in Oliari and others v. Italy, App. Nos.18766/11 and 36030/11, Oct. 21, 2015, the European Court of Human Rights found that Italy was in breach of Article 8 of the ECHR in failing to provide a legal framework for the recognition of same-sex unions. In its judgment, the Court, at §178, spoke of “ . . . the continuing international movement towards legal recognition, to which the Court cannot but attach some importance.”