Strategic litigation on LGBTI rights: Austria’s Constitutional Court opens marriage to same-sex couples
For more than two decades, one Austrian lawyer has strategically represented cases to eliminate discrimination against lesbian, gay and bisexual (LGB) people before domestic and international courts. On 5 December 2017, the Austrian Constitutional Court decided that two persons of the same sex must be able to enter into civil marriage.
This decision (pdf, in German) is yet another brick in Helmut Graupner’s work. It shows that when the political context is not favourable to political advocacy and lobbying, strategic litigation – seeking out cases and courts in order to further one’s agenda – can be an effective avenue.
In a book chapter to appear with Cambridge University Press in 2018, Elisabeth Greif and I trace the political and legal context in which social, political and legal mobilization in the context of LGB rights in Austria has taken place. Actors aiming at protecting the traditional family and at maintaining discriminatory legislation were more successful in the political arena than LGBTI NGOs, which, alongside political lobbying, pursued other strategies, including increasing the visibility and social acceptance of LGBTI people.
Strategic litigation and the litigation cascade before the European Court of Human Rights
Noticing the little progress made by NGOs in the political sphere, Helmut Graupner founded an NGO – Rechtskomitee Lambda (RKL) - whose main aim was strategic litigation. He encouraged claimants to exhaust all domestic remedies and to aim for decisions by the European Court of Human Rights (ECtHR). This resulted in a “litigation cascade” before the ECtHR. The first cases in which the ECtHR found a violation of the prohibition of discrimination, concerned different ages of consent in criminal Law (L. and V. and 7 more cases, 2003-2013) and specific legal acts differentiating between same- and opposite-sex life companions, such as tenancy Law (Karner, 2003, pdf) and social security law (P.B. and J.S., pdf). Here, the ECtHR developed its very weighty reasons test in LGBTI cases.
In 2010, in a much noticed decision on the right to marry, Schalk and Kopf (pdf), for the first time the ECtHR recognised that a same-sex partnership constitutes „family life“ under Article 8 ECHR. While the case was pending and with oral hearings approaching, a registered partnership act was passed in Austria in an unusually hasty manner. Yet, the ECtHR did not consider the differences between the registered partnership act and civil marriage to constitute discrimination.
Following this judgment, the RKL successfully extended its complaints offensive to cover those provisions of the registered partnership act that differed from civil marriage. The Austrian Constitutional Court proved increasingly receptive to ECtHR case-law in this field. A facilitating factor may be that the ECHR has constitutional rank in Austria, and that the Constitutional Court has strong incentives to follow the ECtHR jurisprudence. So an increasing number of cases were decided at the domestic level.
Another strand of litigation concerned rainbow families. The ECtHR decided that stepchild adoption had to be possible for same-sex partners like for opposite-sex partners (X. and others. pdf). Referring to artificial reproductive techniques for opposite-sex couples, in S.H. and others (pdf), the ECtHR’s Grand Chamber did not find a violation of the ECHR. However, the Court signaled that as the case had been pending before it for a long time, it might reach a different conclusion in future cases.
The Austrian Constitutional Court proved very sensitive to these signals. In 2013, the Constitutional Court allowed lesbian women to have access to IVF; in 2014, it allowed same-sex couples to jointly adopt children; and in a large number of cases, it abolished many symbolic differences between the registered partnership act and civil marriage.
Almost all of the applicants in these cases were represented by Helmut Graupner.
Opening civil marriage and registered partnerships for all
Yesterday’s decision by the Constitutional Court may be seen as yet another one in an increasingly linear development – in the chapter we also talk about backlash, halts and detours -, but it can also be seen as one that really affirms that same-sex unions are part of the free choice. The Constitutional Court states that “relationships between same-sex and opposite-sex persons have the same essence and the same significance for the individual”, and that providing different legal institutes for these unions violates the prohibition of discrimination in the Constitution.
What the Constitutional Courts has not said
The Constitutional Court has not mentioned Article 12 ECHR, so it remains to be seen which consequences this judgment will have on the ECtHR’s jurisprudence in this field.