–Zdeněk Červínek (Doctoral Researcher, Department of Constitutional Law, Palacký University, School of Law, Olomouc, the Czech Republic); Martin Kopa (Assistant Professor, Department of Constitutional Law, Palacký University, School of Law, Olomouc, the Czech Republic)
As Rohan Alva noted earlier here on I-CONnect, the plenum of the Czech Constitutional Court (“the Court”) granted the motion of the Prague Municipal Court for the annulment of Section 13 para. 2 of the Act on Registered Partnership (“the Act”), which precluded the adoption of a child by persons living in a registered partnership.
In the Court’s opinion, this provision violated human dignity, the right to private life and the prohibition of discrimination. The provision read, as follows: “Existing partnership precludes any partner from becoming an adoptive parent to a child.”
The crux of the case was that the Civil Code allows adoption by a single person in exceptional circumstances. But the Act explicitly precluded that such a person live in a registered partnership. For that reason, the Court concluded, the law led to unreasonable consequences. It disadvantaged individuals entering registered partnership by taking the possibility to adopt a child away from them.
Protection of Human Dignity–Too High or Too Low a Card for the Protection of LGBTQ Rights?
The judgment attracted attention not only because of the matter it dealt with, but also for the inconsistencies that stem from the Court’s reasoning.
First, the Court summed up jurisprudence of the European Court of Human Rights (“ECHR”; see judgments E. B. v. France; Fretté v. France; Schalk and Kopf v. Austria; X. and others v. Austria; Gas and Dubois v. France) and the Constitutional Court of Austria (hereinafter “CCA”; see e. g. judgment no. G 119 -120/2014) regarding adoptions of children by same-sex couples. These cases are based mainly on the right to private and family life and the prohibition of discrimination enshrined in Art. 8 and 14 of the Convention. But the Court did not follow this line of argument later. It took an unexpected turn and focused on the protection of human dignity.
The Court came to the conclusion that the law violated the right to human dignity, which is the very foundation of human rights. In accordance with the Court’s case law, violation of human dignity occurs where “an individual is treated by the government as an object of its actions, or else, where he or she becomes mere means for attaining [government’s] goals and is, therefore, marginalized to a generic and interchangeable quantity.” (§ 45) In this case, the Court held:
Provided that [the provision] excludes a specific group of people, who merely enter registered partnership, from the enjoyment of the right […], it makes them de facto ‘second class citizens’, it stigmatises them and it evokes an impression of their inferiority, essential otherness and apparently even the inability to take care of children properly – unlike other persons. […] This effect, however, does not result from some tainted, non-ethical or even unlawful actions, but only from the fact, that they entered registered partnership – i.e. they act in a way, which is enabled and foreseen by law, and they transparently and predictably assume all the responsibility stemming from the registered partnership. (§§ 46 – 47)
No matter how much we endorse the final verdict of the Court, it may appear that the Court applied human dignity to the case in a slightly artificial way. It analysed series of cases of the ECHR and the CCA concerning the right to private and family life and the prohibition of discrimination first. And after that, it surprisingly twisted its reasoning to the protection of human dignity. We suggest that it would be more persuasive to follow the line of reasoning marked by ECHR and the CCA, i.e. to argue the case mainly on the basis of the prohibition of discrimination read in conjunction with the right to private and family life. What was the reason for the Court to resort to human dignity instead? As we suggest below, it is the direct effect of the Court’s conservative definition of family.
Do Same-Sex Couples Enjoy Family Life?
In the reasoning of the judgment, the Court noted that it is not willing to come up with a general definition of “family”. The majority indicated that it is for the social sciences to do so. But then, the majority added:
[T]he Court understands the notion of a family not as social construct but primarily as a biological construct of blood-related persons who live together, or alternatively, as non-family relationship which emulates a biological one (adoption, foster case etc.). (§ 36)
It further observed, citing Czech family law scholars, that:
[F]amily is the basis of the birth, that is the continuation of life in other generations […]. For that reason, family is created on the basis of a marriage, or cohabitation of unmarried parents and their child, or as the case may be, cohabitation of one parent with a child. (§ 37)
The first question is whether these passages were even called for. The judgment would keep its footing without them. But since the Court decided to take this step, it should have addressed the relevant case-law of the ECHR on this issue. The ECHR firmly held several times that same-sex couples living in a stable relationship fall within the notion of “family life,” in the same way as the relationship of a different-sex couple (see e. g. Schalk and Kopf v. Austria, §§ 92-94; X and Others v. Austria [GC], § 95). On the very day, when the Court decided to derogate the provision in question, the ECHR held in Aldeguer Tomás v. Spain that:
[I]n view of the rapid evolution in a considerable number of member States regarding the granting of legal recognition to same-sex couples […], it [would be] artificial to maintain the view that, in contrast to a different-sex couple, a same-sex couple [could not] enjoy ‘family life’ for the purposes of Article 8. (§ 75)
Besides, the Court should not have overseen that the ECHR held in Vallianatos and Others v. Greece that same-sex couples applying for registered partnership status, indeed, fall within the definition of “family life.” (§ 73-74)
It follows that passages of the judgment concerning family are in contradiction with the understanding of family life in the case-law of the ECHR. And their conservative tenor may lead to undesired repercussions in future LGBTQ cases. It must be noted that in the Czech Republic, existing case-law of the Court provides that international human rights treaties form a part of the Constitution. The ECHR is therefore the final interpreter of a part of the Constitution – the European Convention on Human Rights. For these reasons, the Court should have, at least, addressed the Strasbourg case-law in attempt for distinction. But in our opinion, the ECHR case-law does not provide the states much space for maneuver in the issue of family life of same-sex couples.
Does the Judgment Amount to Win for LGBTQ?
On the day of the judgment’s delivery, some thought that this case was the “Czech Obergefell”. But we are afraid that it is actually more of a loss for LGBTQ community than a win. The Court chose to interpret the notion of family restrictively and it applied the concept of human dignity to provide protection against the unreasonableness of the Act. But it clearly did not want to go anywhere near to laying possible foundations for future cases concerning LGBTQ rights (such as second-parent adoption), which will sooner or later end up before the Court. For these reasons, the answer to the question above is, sadly, no.
Suggested Citation: Zdeněk Červínek & Martin Kopa, Czech Constitutional Court: Czech Law Forbidding Registered Partners to Adopt Children is Unconstitutional. But Is the Judgment *Really* Good News for LGBTQ?, Int’l J. Const. L. Blog, July 29, 2016, at: http://www.iconnectblog.com/2016/07/czech-constitutional-court-czech-law-forbidding-registered-partners-to-adopt-children-is-unconstitutional-but-is-the-judgment-really-good-news-for-lgbtq