The Spanish Constitutional Tribunal’s Same-Sex Marriage Decision

—Christina M. Akrivopoulou, Adjunct Lecturer, Democritus University of Thrace

The Spanish Constitutional Court, in judgment 198/2012 of November 28, 2012, upheld Law 13/2005, which guarantees same-sex marriage in Spain.

Prior to the democratic transition that followed the death of Franco and the end of his dictatorship, Spain was characterized by a very religious and conservative perception of the institution of marriage. This perception was based on the inequality between men and woman, especially between the husband who had the role of pater familias and the wife. The inferior position of the latter was most characteristically reflected in the Sección Femenina, an education provided by the state, to women in order to be trained as mothers and housewives. After the introduction of the Spanish Constitution of 1978, a dynamic reformation in the field of family law initiated the gradual liberation of the institution of marriage from religious and social stereotypes, and this has been followed by an ongoing legislative acknowledgment of gay rights. Law 10/1995, which guaranteed in principle equality for all Spaniards regardless of their sexual orientation, was followed by the recognition of same-sex civil unions (solidarity pacts) in 12 of the 19 autonomous communities and cities of Spain during the period that preceded the introduction of Law 13/2005, which guaranteed same-sex marriage at a national level.

Despite the legislator’s willingness to enforce equality regardless of sexual orientation in the field of family law, the text of Article 32, paragraph 1 of the Constitution served as a potential barrier, because it appeared to contemplate marriage as an exclusively heterosexual institution. The provision states that “[m]en and women have the right to marry with full legal equality.” Based on this Article, a complaint was addressed to the Spanish Tribunal Constitucional regarding Law 13/2005.

The Spanish Constitutional Court used interesting reasoning in upholding Law 13/2005. It emphasized the need to guarantee full equality in marriage regardless of sexual orientation because of the constitutional protection of dignity and personality (Article 10, paragraph 1). Further, the Court adopted a non-originalist interpretation of the constitutional text, instead viewing it as an evolving document. The Court referred for example to the “living tree” doctrine of the Canadian Supreme Court.

According to the Spanish Constitutional Court, Article 32, paragraph 1 served a particular historical purpose in 1978 in establishing legal equality between men and women. However, since that time the institution of marriage has developed in a different and more liberal framework. As the Court pointed out, the evolution of the social concept of marriage, its detachment from the right to create a family, and the parallel legislative acknowledgement of same-sex marriage in the vast majority of European legal orders all required a changed interpretation of the Spanish Constitution, which should not be considered “frozen” in time. Using similar reasoning, the Court upheld adoption by married same-sex couples, underlining that adoption has to be considered exclusively on the basis of the child’s best interest and should not based on the parents’ sexual orientation.

The judgment of the Spanish Constitutional Court on same-sex marriage is of considerable significance for two reasons. First, it reaffirms with an extremely solid legal justification the right of homosexual couples to marriage and thus reverses a major injustice in Spain. At a moment where the dialogue regarding same-sex marriage causes a lot of debate in Europe this judgment serves as a paradigm for other countries that still hesitate to expand the institution of marriage to same-sex couples. An example is Greece, which currently faces condemnation from the European Court of Human Rights for not allowing same-sex couples to enter civil unions (See Vallianatos & Mylonas v. Greece & C.S. et. al. v. Greece, Case Nos. 29381/09 & 32684). At a second level this judgment is of historic significance for introducing the Canadian living tree doctrine into European jurisprudence. Although the living instrument doctrine has been enforced by the ECHR in Strasbourg (see Tryer vs UK, Νο 5856/72, 25.4.1978), the Spanish Constitutional Court’s importation of the living tree doctrine underlines the importance of comparative and international law for the protection of constitutional rights and freedoms in the frame of a national legal order.

Suggested Citation: Christina M. Akrivopoulou, The Spanish Constitutional Tribunal’s Same-Sex Marriage Decision, Int’l J. Const. L. Blog, July 19, 2013, available at: http://www.iconnectblog.com/2013/07/the-spanish-constitutional-tribunals-same-sex-marriage-decision