Partnership of same-sex couples: Establishing a new form of family

On the occasion of the conviction of Greece following the European Court of Human Rights΅― judgment regarding ‘civil unions’ (Vallianatos and others vs. Greece, 7.11.2013), the Hellenic League for Human Rights (HLHR) points out that the Greek state ought to comply immediately, by changing its legislation and including same-sex couples in the regulations of the relevant law. 

The obligation to respect the rights of same-sex couples also entails, among others:

– recognition of the right of same-sex couples to get married, just like opposite-sex couples. The HLHR points out that marriage aims first and foremost at the protection of individuals that choose to marry and not at the protection of the actual institution of marriage as an objective state that must be perpetuated unaltered and in its previous form. 

– recognition of the right of adoption for same-sex couples as well. The quality and value of a family and of a parent do not relate to sexual identity, but are defined by love, loyalty, self-sacrifice, care and responsibility.

The HLHR points out that same-sex couples do not seek to change the way in which the rest will be getting married and adopt, nor the obligations that stem from marriage and family. They just ask something self-evident of the State: to acknowledge a reality and not deny a fundamental right to a group of people because of their sexual orientation ¨C the right of everyone to shape their life autonomously, to choose their partner unbiased and to decide freely if, when and with whom they will live together, get married and shape their common family life. 

1. Civil Union 

A few years ago, the Greek state legislated the so-called ΅®civil union΅― (Law 3719/2008). The passage of a bill that modernizes our law is hailed primarily as a positive measure. However, the Greek state found itself once again lagging behind the real needs for a regulation of social partnership. This was because, instead of showing social sensitivity, the government in office proved to be unassertive in a double way: on the one hand, towards opposite-sex couples, which were the object of the law in the first place, and on the other hand towards same-sex couples, which were excluded.

More specifically, according to the provisions of the law, a civil union is concluded between two adult opposite-sex persons with a notarial document listed in a special book in the parish register.With the civil union, the contracting parties can regulate their property, as well as the partners΅― alimony support by one another, while an inheritance right (albeit limited in comparison to marriage) is recognized in the case of death of one of the partners. Regarding children, the new law provides, as is the case with marriage too, presumption of parentage from the civil union, while both parents exercise joint custody of children. In spite of all this, the civil union is inadequate: this is because this law inexcusably deprives the partners of privileges currently enjoyed by married people (e.g. privileges relating to civil service, work, insurance and pension). In this way, to mention just one example, the Social Security Institute (IKA) has refused to provide a patient΅―s booklet to a pregnant woman joint in a civil union with her partner who was insured in the Social Security Institute. In view of the above disadvantages, it is only natural that such a small part of couples chooses the civil union in comparison to the two types of wedding: thus, according to the official data by ELSTAT (the Hellenic Statistical Authority), in 2012 there were 25,730 civil weddings, 23,980 religious weddings and just 314 civil unions. 

Most of all, however, the civil union was unassertive: it was the only civil union in Europe to concern exclusively opposite-sex couples, that is, those who can get married anyway. As the HLHR had pointed out: ΅°invoking as a pretext a ΅®dominant΅― social morality and the fear of a reaction by the Church, which did not miss out on the opportunity to remind us that it considers ΅®every other ΅°marital΅± affair outside marriage according to the Orthodox ritual as prostitution΅―, the State once again found itself behind the real needs for a regulation of social partnership. Equal rights of homosexuals are not just their own problem, nor an idiomatic expression of some other persons. They are a measure of a legal order that wants to be liberal, to respect the free development of the personality, the personal and family life of each and every one of us΅±

Moreover, it is worth noting that, when Law 3719/2008 was voted, Greece was the only country in Europe which had voted a civil union exclusively for opposite-sex couples. That is, for those couples that already had every possibility to get married anyway. European legislations for the recognition of free partnership either refer exclusively to same-sex couples (e.g. Croatia, Czech Republic, Denmark, Germany, Portugal, Sweden, Switzerland, UK etc.) or extend the field of application of relevant laws to same-sex as well as opposite-sex couples (e.g. Belgium, France, Hungary, Luxembourg, the Netherlands). In total, 23 European states have already instituted the civil union between same-sex couples.

In light of this unjustified discrimination against them, same-sex couples have reacted and brought an action before the European Court of Human Rights. The Court, with a recent decision of its plenary session (Vallianatos and others vs. Greece, 7.11.2013) triumphantly ruled in favor of the claims of same-sex couples for violation of their family life and condemned Greece (Articles 8 and 14 of the European Convention on Human Rights). 

Why is this decision important? First, because it points out to Greece that when a State legislates, it has to take social developments into consideration as well as the fact that there is no single way for someone to shape their personal and family life. Second, because it stresses the fact that a stable partnership between people of the same-sex constitutes a family life, just like the partnership between a man and a woman. Third, because it underlines that this law conflicts with the right of same-sex couples to develop their personality freely and to shape their family life autonomously.

Following this conviction by the Court in Strasbourg, the Greek state is called to amend its legislation immediately and include same-sex couples in the regulations of the relevant law. As for any reservations already expressed by the government regarding the notion of complying with convictions by the European Court of Human Rights, the Strasbourg court is clear: as the Court itself pointed out, the obligation to comply with a final decision is not exhausted in the payment of the amount awarded as fair compensation. On the contrary, member States are obliged to ΅°choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress as far as possible the effects΅― (Scozzari vs. Italy, 13.7.2000).

2. Marriage

The HLHR points out that the obligation of equal treatment of same-sex couples is not limited to their explicit inclusion in the civil union law. On the contrary, Greece has to recognize explicitly the right of same-sex couples to get married, just like opposite-sex couples can. It should be noted that, on a European level, nine states (Denmark, Spain, Belgium, France, Iceland, Portugal, the Netherlands, Norway, and Sweden) have already extended the possibility of marriage to same-sex couples.

Our Constitution guarantees marriage both as an ΅®institutional guarantee΅― and as an individual right, that is, as the discretion of everyone to decide freely if, when and with whom they will marry (Article 21 ΅μ1). Could it be, though, that marriage is protected as an ΅®institution΅― with a historically specific content, meaning the union of man and woman, and thus its expansion to same-sex couples is not possible? The answer is no. 

Marriage is not a crystallized and unaltered social formation, protected against any ΅®alien΅― impurity. In other words, the constitutional protection of marriage does not mean that marriage has to be perpetuated in the form it had during the enactment of the current Constitution. Besides, the Constitution does not define (nor should it) what marriage is. It simply protects marriage and imposes its protection by the State, whatever its kind may be. 

Indeed, marriage aims primarily at the protection of those who have the respective right, and not at the protection of the actual institution of marriage as an objective state. This is because marriage and the rules that govern it were created in order to protect not the idea or the social formation of marriage, but the individuals that choose to get married. 

In this way, the constitutional guarantee of marriage means, on the one hand, that the State is obliged to institute the regulations that are suitable and necessary for the safeguarding and promotion of marriage, and, on the other hand, that the Constitution should not tolerate the conclusion of a marriage if it has unpleasant consequences to individuals. The constitutional guarantee of marriage excludes the abolition of marriage by the common legislator. On the contrary, it does not exclude its legislative amendment.

According to the opposite view, however, the legislative amendment of marriage cannot alter its basic characteristics. Gender difference is, according to the same view, one such structural characteristic. If one assumes that gender difference is one of the structural elements of marriage (apart from its elementary structural elements: free will of the parties in their commitment to a continued partnership and the formal conclusion of marriage), then it one has to explained why this is so. The only reasonable explanation is the necessary connection of marriage with the creation of a family and the attribution of the purpose of having (and raising) children to marriage. For as long as marriage was legally considered as the sole base of a family, something of the sort could be plausibly argued. Already since the 1970s, though, the dominant public opinion disconnects marriage from having children, a fact internationally confirmed by case law, apart from legislation, by recognizing the existence of de facto (outside of marriage) families. It is accepted now that the right to marriage is different from the right to have children and create a family. The fact that couples can conclude marriage regardless their biological ability or wish to have children would not be taken into account at all if the opposite was the case. 

In the past few years, a total redefinition is taking place regarding the notion of marriage, which, as a social formation, distances itself from its initial, ΅®natural΅― and historical coordinates. In this context, the legislator is free to readjust the terms and conditions of the conclusion of marriage, and to represent in the legislation the changes that have already taken place in society. 

Could it be though, at the end of the day, that the recognition of the right to conclude marriage for same-sex couples opposes the customs and morals of our country and the ΅®traditional΅― definition of marriage as the union between a woman and a man? First, to argue starting from a definition of marriage is a methodological mistake, since that is to take for granted what is being sought here. What any definition does is simply to reproduce possible dominant facts and prevailing perceptions. Furthermore, the long existence of an institution, or just a legal and real situation, does not make them in themselves objects worthy of legal protection and preservation ad infinitum. Otherwise, the ΅®institution΅― of slavery, historically established since antiquity, should be perpetuated, or, to get to the example of marriage, marriage between people of different colour should remain ΅®unthinkable΅―.

Neither, however, the argument of the ΅®sanctity΅― and ΅®religious nature΅― of marriage, which is being massively put forth by circles of the Church, is correct, since it completely ignores the differentiation between civil and religious wedding and the establishment of civil wedding as an independent and equal form ΅®ad solemnitatem΅― as the religious one. In other words, the possibility of same-sex couples to get married neither reverses the possibility for opposite-sex couples to get married nor obliges priests to conclude religious marriage of a same-sex couple.

However, could it be that society is ΅®not ready΅― for such a step yet? ¦³he argument in question, put forth at times in order to deprive from a social group the rights enjoyed by others (e.g. the right to vote from women, or civil rights from blacks in America), has no place under the rule of law. If human rights have an actual reason of existence, they cannot be offset or overridden with conservative clich¨¦s out of fear of the reaction of the Church and petty-political canvassing, or just because some people ΅®feel annoyed΅―.

The HLHR Hellenic finally reminds that the recognition of same-sex marriage does not affect in the least the rights and terms of conclusion of marriage between persons of opposite sex. Same-sex couples do not seek to change the way in which the rest will be getting married, least of all the obligations and general legal consequences which derive from marriage.¦³hey are just asking for something self-evident: for the State to acknowledge a reality and not deny a group of people a fundamental right because of their sexual orientation ¨C the right of every person to form their life autonomously, to choose their partner unbiased and to decide freely when and with whom they will get married.

3. Adoption

Finally, the HLHR points out that the Greek State has to intervene and regulate both the relations of parents and children in families of same-sex couples that have been living together for a long time and have children, as well as the right of same-sex couples that want to have children but can not. And it has to do so by recognizing explicitly the right of adoption for same-sex couples as well.

Could it be, though, that it is in the best interest of the child not to be raised in a family with same-sex parents? The answer is no. There is an agreement of scientists on the view that, on the one hand, sexual preferences of individuals are irrelevant to their ability of being good parents, and, on the other hand, that children of same-sex parents are in no way raised worse than the children of opposite-sex parents, nor do they develop emotional or other psychological problems because of that (see, among else, American Academy of Pediatrics, North American Council on Adoptable Children, American Psychiatric Association,American Academy of Child and AdolescentPsychiatry). Indeed, the quality and value of a family and a parent have nothing to do with the parent΅―s sexual preference of one or the other gender; they are defined by love, faith, self-sacrifice, care and responsibility.

Moreover, the right of a same-sex couple to start a family and have children cannot be limited based on a vague invocation of public morality or an alleged violation of the rights of third parties, who do not take part in the family. ¦³he same applies to certain ΅®moralist΅― arguments lurking behind the cloak of the ΅®child΅―s interest΅―, such as that adoption should not be allowed, since the children of homosexuals are destined to be socially ΅®stigmatized΅―. ¦³his argument, however, does not answer the question. On the contrary, it just legalizes and perpetuates the social prejudice against homosexuals and same-sex couples. 

It should be noted that many European States have regulated the issue of the relationship between children and same-sex couples, through legislation that has institutionally established either the partnership or the marriage of persons of the same sex. On a European level, then, the right to adoption for same-sex couples has been recognized, among others, by the Netherlands, Belgium, Spain, Denmark, Sweden and England. Respectively, other States (e.g. Germany) provide in their legislation on civil union a kind of ΅®shared parental responsibility΅―.

Finally, the European Court of Human Rights (¦¥.¦Ά. vs. France, 22.1.2008) also ruled that sexual preferences of individuals or partnership between same-sex individuals should not raise obstacles for child adoption. In this way, competent national authorities are not anymore in a position to reject an application for adoption based on the sexual preferences of the applicants, regardless if the applicants are individuals who do not hesitate to reveal their sexual orientation or same-sex individuals who live together.

 

Member

© HLHR 2020

info [@] hlhr.gr
+30 2130264975

Powered by Advalue