Hungarian Court Vetoes Domestic Partnerships

Timothy Kincaid

December 15th, 2008

This in from the AP:

Hungary’s Constitutional Court says it has annulled a law giving rights to domestic partners because it would diminish the importance of marriage.

Their reasoning was peculiar and worth a moment of thought. The Court stated that it would accept domestic partnerships for gay couples but not for heterosexuals. By offering all the same rights to DPs, it “downgraded” the importance of marriage.

Interestingly, this Court recognized what the legislatures of New Hampshire and New Jersey are pretending to find confusing: that marriage is not equal to a relationship by some other name. Sadly, the Hungarian Court seems to be trying to ensure that same-sex couples be allowed only the lesser status.

Ben in Oakland

December 15th, 2008

That’s very odd, because i think it was the hungarian Supreme court that gave gay people some sort of partnership rights to begin with. I don’t remember much about it, but I remember that much

Tavdy

December 15th, 2008

It could all be a moot point anyway – a gay Austrian couple has a case being heard in the European Court of Human Rights (Horst Schalk and Johann Kopf v Austria) over Austria’s refusal to recognise gay marriage (Austria has Unregistered Cohabitation, which doesn’t provide many rights). As I understand it, if the ECHR rules that Austria should recognise gay marriage or civil unions it would affect almost all European countries – including countries like Hungary, Turkey and Russia; if the ECHR rules that gay marriage specifically it will also affect countries like France, the UK and Germany, which have civil-union equivalents; hopefully the recent New Jersey report findings will have some influence there.

Timothy Kincaid

December 15th, 2008

Thanks for the info, Tavdy, but I think it may be slightly incorrect on your specific countries. Unless I’m mistaken,

UK has civil unions – nearly equivalent to marriage
Germany has Life Partnerships – some rights but less than Civil Unions.
Austria has Unregistered Cohabitation which has even fewer rights.
France has PACS, the least of all options.
Of course, Turkey and Russia have nothing at all.

Stefano A

December 15th, 2008

Horst Schalk and Johann Kopf v Austria is about whether or not same-sex relationships fall outside or within the ambit of family life as defined by the European Convention on Human Rights covered under Article 8:

“Everyone has the right to respect for his private and family life, his home and his correspondence.”

Horst Schalk and Johann Kopf argued that Austria has violated their right to a private and family life and their right to marry.

Article 12 states:

“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”

Article 14 provides for non-discrimination.

Family law remains a matter for the member states and not the EU. At present some EU nations, such as Spain and Belgium, and others as pointed out allow same-sex marriages or some other arrangement.

A declaration could be drawn up but it would require 50% of all MEPs to sign before it could be adopted as a resolution.

However, any EU-wide agreement on the issue of same-sex recognition would require a consensus among the 27 member states.

Given the positions of some states like Latvia, Poland, Lithuania, an EU-wide agreement would be unlikely.

Also, any current member who disagrees with an EU law can withdraw their membership in order having to implement such a law.

In October Vladimir Spidla, the EU Commissioner for Employment, Social Affairs and Equal Opportunities, said that it is up to individual member states whether or not to legally recognise gay and lesbian relationships.

“Within European legislation we have gone as far as we can go. If a state accepts the equality of these relationships then that state cannot discriminate. And there are already some infringement procedures against some states on this matter.

“However, whether the state accepts these unions or not is a basic national competence. And we don’t interfere with that.

“I think that we found the best possible balance in the proposal of the directive.

“These are national competences over things that are very sensitive and which are not the subject of European legislation so we preserve them in that way …

So, while Horst Schalk and Johann Kopf v Austria may influence/inform what Austria does based on its own laws it wouldn’t force other nations to do so. That is, it wouldn’t make “moot” any/all individual national laws and require all nations to offer same-sex marriage or convert the French PAC, for example, to a marriage.

This is not the same as the pressure to get countries to recognize another country’s arrangment; i.e., France recognizing Britian’s Civil Union arrangement as does Britian’s recognition of a PAC which is what Spidla was alluding to regarding discrimination and “infringement procedures against some states on this matter”.

BTW: Neither Russia nor Turkey are EU member states although Turkey has been trying to become a member since the 80’s.

Just as a note of interst, Norway is also not a member as their electorate has voted against joining.

Stefano A

December 15th, 2008

Ben:

That’s very odd, because i think it was the hungarian Supreme court that gave gay people some sort of partnership rights to begin with.

No, the Hungarian Supreme Court nor a lower court made that ruling. The the Registered Partnership Act was approved by the Hungarian Parliament.

From 1 January 2009 lesbian and gay couples would have had almost identical rights as married heterosexual couples in common law. Some exceptions being the right to adopt, access to fertility treatment and the right to take their partner’s surname.

I’m not familiar with Hungary’s constitution so I don’t know what the “special protection under the constitution” is for marriage that the Hungarian Supreme Court used to rule same-sex marriage unconstitution but domestic-partnerships which only allow some rights constitution.

This situation seems to be similar to lines of distinction that Ireland has been trying to draw based on the Irish constitution. Although, admittedly, not as extreme as that of Hungary.

Tamas

December 17th, 2008

The Hungarian Constitutional Court did indeed open up the institution of cohabitation for same sex couples very early on in 1995. But cohabitation is a very limited institution compared to marriage: you have to prove it every to you apply to some right and the rights that come with it are severely limited (no inheritance, no next of kin status, etc.) The new decision makes it clear that the Constitutional protection of human dingity (the bases for equality argumentation in Hungarian and German constitutional law) means that same sex couples are worthy of a higher form of legal recognition and protection more similar to that of marriage. The Court said nothing about how different registered partnership should be from marriage, so in the long run even adoption and artificial insemination could be added to the law.

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