This chapter presents the struggle for legal recognition and protection of same-sex relationships. In general, the right of individuals to equality and non-discrimination was judicially recognised much earlier than their rights in relationships. This was driven in part by a fear of same-sex marriage. Thus in Lawrence v. Texas, Justice Kennedy framed the question of decriminalisation as one of individual liberty. Lawrence and Garner’s “personal relationship” was within their liberty to choose, regardless of whether it was “entitled to formal recognition in the law”. As recently as 2001, after striking down laws that criminalised same-sex sexual conduct (Dudgeon, Norris, Modinos) and affirming sexual orientation to be a characteristic that was undoubtedly covered by the non-discrimination guarantee of Article 14 (da Silva Mouta), the European Court ruled in Mata Estevez v. Spain that “long-term homosexual relationships between two men do not fall within the scope of the right to respect for family life protected by Article 8 of the Convention”. That case concerned the applicant’s request for a survivor’s pension after the death of his partner.
When same-sex relationships go unrecognised in law, however, couples suffer a range of consequences. Relationship recognition is not just about status. It is also about access to economic rights and benefits. (Rights and responsibilities related to children are covered in the Parenting Chapter.) Same-sex couples may be unable to own property jointly, to be included in health insurance plans, to benefit from tax relief, to visit each other in hospital, make decisions related to medical care, or receive survivor benefits in the event of death. Without recognition, many same-sex couples confront on a daily basis a series of “social indignities and economic difficulties … due to the inferior legal standing of their relationships compared to that of married couples”. It is notable that many of the earliest cases concerning same-sex partnerships occurred when a surviving partner sought the right to continue to reside in a shared apartment or to receive a survivor benefit or pension, rights that would be conferred automatically on a widow or widower. In enacting a domestic partnership law, one legislature stated that such rights and benefits had an “essential relationship to any reasonable conception of basic human dignity and autonomy” and played an “integral role in enabling these persons to enjoy their familial relationships as domestic partners”.
A strong case can be made that international law prohibits discrimination between the situation of married opposite-sex couples and unmarried same-sex couples, in terms of access to benefits and privileges. In Young v. Australia (2003), the UN Human Rights Committee held that denying a survivor’s pension to Young, whose partner of thirty-eight years was a war veteran, because he was not a member of an opposite-sex couple, constituted prohibited discrimination under Article 26 of the Covenant. A similar outcome was reached by the European Court the same year, in the case of Karner v. Austria. The Court held that the Supreme Court’s decision not to recognise Karner’s right to succeed to the tenancy of an apartment after the death of his partner violated Article 14, and the respect for his home under Article 8 of the Convention. Although the European Court accepted that “the protection of the family in the traditional sense is, in principle, a weighty and legitimate reason which might justify a difference in treatment” between same-sex and opposite-sex couples, it concluded that the Government had not shown that exclusion of same-sex couples from the statute’s protection was necessary in order to achieve that aim. The European Court of Justice has also held that differences in treatment between same-sex and opposite-sex couples with regard to employment and pension benefits amount to discrimination on grounds of sexual orientation.
In the 2010 case of Schalk & Kopf v. Austria, the European Court held for the first time that the emotional and sexual relationship of a same-sex couple constituted “family life” within the meaning of Article 8 of the Convention. Consequently, same-sex couples, including ones without children, had the same need for “legal recognition and protection of their relationship” as opposite-sex couples. In taking this step, it acknowledged that: “[since] the decision in Mata Estevez was given, a rapid evolution of social attitudes towards same-sex couples has taken place in many member States … In view of this evolution the Court considers it artificial to maintain the view that, in contrast to a different-sex couple, a same-sex couple cannot enjoy “family life” for the purposes of Article 8.”
Same-sex relationships first received formal recognition in Denmark in 1989. Norway and Sweden soon followed suit. In the United States, by contrast, formal recognition of relationships occurred later and slower. United States courts’ employed a “functional approach”, granting benefits and rights to same-sex partners but withholding official approval. Until 2003, the US Supreme Court case of Bowers v. Hardwick was the law of the land and justified State-sanctioned discrimination. Thus in 1999 the Vermont Supreme Court relied on the State Constitution, rather than the federal Constitution, when it ruled that same-sex couples must be granted rights and privileges equal to those granted to married couples. That case led to the enactment of Vermont’s civil union law.
The cases in this chapter fall into two categories. In the first category are cases that deal with the exclusion of a same-sex partner from a right or benefit that State law or a private company or a benefit plan would award to an opposite-sex partner. The cases from Israel, Canada, South Africa and Slovenia, and the Brazilian case of SGB v. PREVI, fall into this category. The topics covered show the range of concerns that individuals excluded from relationship recognition raise. El-Al Israel Airlines (1994) concerns a free airline ticket, awarded to married spouses or opposite-sex companions, but not to same-sex partners of El-Al employees. In finding that El-Al was required to give the benefit to same-sex partners of its employees, the Supreme Court of Israel noted that the free ticket was given not only to the spouses of married employees but also to “recognized companions” of the opposite sex. This being the case, the purpose of the ticket was plainly not to “strengthen the institution of marriage”, since a ticket could be given to any opposite-sex companion with whom an employee lived, regardless of whether that employee was married. The court emphasised that a “life of sharing” was the common feature, and that this “life of sharing” was not different between same-sex and opposite-sex couples. A concurring opinion took note of the functional approach to defining same-sex families used by US courts. The dissent, by contrast, argued that the issue could be resolved linguistically. Justice Kedmi wrote: “To give the concept ‘couple,’ in the context discussed here, a different meaning from the linguistic meaning that it has always had is impossible”. He quoted the Bible as proof that a “couple” could only mean the joining of two individuals of opposite sexes for the purpose of biological reproduction.
The procreation argument did not win in the El-Al case but was dispositive in the 1995 case of Egan v. Canada. Appellants had alleged that the exclusion of an opposite-sex partner from the benefits of the Old Age Security Act, which was limited by its terms to “spouses,” was discriminatory. The Supreme Court unanimously agreed that “sexual orientation” was analogous to the other grounds protected from discrimination by Section 15 of the Charter. However, a majority of the Court found that no Charter violation had occurred. Four justices held that the distinction between opposite-sex and same-sex couples was rational because only heterosexual couples were primarily responsible for raising children. The dissent argued that the presence or absence of children had no relevance to eligibility for an old age spousal supplement. Justice Cory, in dissent, emphasised that the discrimination was against individuals as couples, which involved conduct as much as status. The conduct in question was the choice of partner. As the Charter protected both religious belief and religious practice, so it should protect the conduct involved in choosing a life partner.
In the case of Blažič and Kern, the Constitutional Court of Slovenia unanimously concurred that sexual orientation is an analogous ground. In that case, the couple challenged provisions of the registered partnership law that were unequal with regard to inheritance rights. Sexual orientation was not specifically mentioned in the equality guarantee of the Constitution of Slovenia. Nevertheless, the Court took note of the European Court’s reasoning in da Silva Mouta v. Portugal, where sexual orientation was found to be covered by the Convention. In the Brazilian case of SGB v. PREVI, which concerned a survivor’s pension, the court emphasised the evolution of attitudes to relationships that had occurred and held that the traditional preoccupation with procreation was no longer central to the definition of a stable union.
Courts and litigants have both expressed frustration with a piecemeal approach to relationship rights. Commentators have recognised that, although the functional approach represents an opportunity for courts to “afford stopgap legal recognition to same-sex couples within a statutory framework that would otherwise deny them such recognition”, it is “unsatisfactory as a long-term solution”. In J & Another v. Director General, Department of Home Affairs (see Parenting Chapter), the Constitutional Court of South Africa observed: “Comprehensive legislation regularizing relationships between gay and lesbian persons is necessary. It is unsatisfactory for the courts to grant piecemeal relief to members of the gay and lesbian community as and when aspects of their relationships are found to be prejudiced by unconstitutional legislation”.
The second set of cases discussed in this chapter consider the recognition of relationships as relationships. Although the name varies – civil union, registered partnership, and domestic partnership are among the permutations – formal legal recognition for same-sex couples is increasingly common in North and South America and Western Europe. In Europe, it became possible to register partnerships largely as a result of legislative action, although in some instances a pending European Court case may have influenced legislators. In the United States, civil union laws were enacted as the result of judicial challenges in both Vermont and New Jersey. (In addition, court cases in Iowa, Connecticut, and Massachusetts resulted in statutory change to marriage law, whereas court cases in Hawaii and Alaska resulted in constitutional amendments prohibiting same-sex marriage. Recognition of same-sex relationships as relationships (rather than actions seeking individual benefits) has also come about through legal challenges in Colombia and, most recently, Brazil.
In Lewis v. Harris, same-sex couples challenged the constitutionality of their exclusion from State marriage laws. They did not ask for civil unions or domestic partnerships; indeed, they argued that a separate statutory scheme for same-sex couples would also be discriminatory. The Supreme Court of New Jersey held, first, that the right to marry a person of the same sex was not a fundamental right protected by the liberty guarantee of the State Constitution. It did, however, find a violation of the equal protection clause. In doing so, it separated the plaintiffs’ claim into a substantive component (whether they were entitled to the rights and benefits of marriage) and a symbolic one (whether they could claim the title of marriage). The Court found that the rights and benefits of marriage must be conferred on plaintiffs, but left the question of means to the legislature. (The dissent criticised what it viewed as judicial timidity, but the Court was no doubt aware of same-sex marriage decisions in Hawaii and Alaska that had led to constitutional amendments limiting marriage to the union of one man and one woman. In this regard, the Lewis Court took a path that had explicitly been considered and rejected by the Constitutional Court of South Africa in Fourie. (See Marriage Chapter.) The Legislature of New Jersey responded by enacting the Civil Union Act, which not only created same-sex civil unions but established a commission to review the functioning of the law. The plaintiffs have now challenged the Civil Union Act in court, alleging that they have still not been afforded the same rights and benefits as married couples.
In Colombia, civil unions are regulated by Law 54 of 1990. This was first challenged in 1996 case when petitioners argued that the law discriminated on the basis of sexual orientation. The Constitutional Court found no discrimination. This decision was the subject of an application to the UN Human Rights Committee in X v. Colombia, which held that the lack of a pension benefit for the surviving partner constituted discrimination. In Sentencia C-075/07, the Court held for the first time that civil unions should be extended to same-sex couples. The Court emphasised that, although the Constitution prohibited discrimination on the basis of sexual orientation, thus far that right had only protected individuals and not their relationships. Development as a member of a couple, however, was equally important. The Court concluded that the possibility of forming a relationship was an essential aspect of personal fulfilment, both sexually and in other dimensions as well. The ruling gave same-sex couples the same property and inheritance rights as heterosexual couples. In 2009, in Sentencia C-029/09, also included here, the Constitutional Court ruled that the benefits conferred on married couples in a wide range of areas (including housing subsidies, nationality and residence, testimonial privileges and domestic violence protection) must be extended to same-sex couples. The decisions of the Constitutional Court of Colombia are far-reaching and caused the benefits and protections of Law 54 to be extended to same-sex couples.
The final case in this chapter concerns the Supreme Tribunal Federal of Brazil. In May 2011, the Tribunal held that laws regulating “stable unions” should be read to include same-sex couples. Same-sex couples in stable unions now have the same rights as opposite-sex couples to community property, alimony, health insurance, tax benefits, adoption and inheritance. Any other interpretation of the stable union law, the Tribunal ruled, would violate the Constitution.
- Lawrence v. Texas, 539 US at 567.↵
- European Court of Human Rights, Decision of 10 May 2001, Mata Estevez v. Spain, Application No. 56501/01 (finding application inadmissible).↵
- Lewis v. Harris, 908 A2d at 202.↵
- New Jersey Statutes Annotated 26:8A-2(d).↵
- Human Rights Committee, Views of 18 September 2003, Young v. Australia, Communication No. 941/2000. The same conclusion was reached by the Human Rights Committee, Views of 30 March 2007, X v. Colombia, Communication No. 1361/2005.↵
- European Court of Human Rights, Judgment of 24 July 2003, Karner v. Austria, Application No. 40016/98, para. 43.↵
- European Court of Justice (Grand Chamber), Case C-14/08 of 10 May 2011, Romer v. Freie und Hansestadt Hamburg (finding that a city pension scheme under which married city pensioners than opposite-sex city pensioners constituted direct discrimination because same-sex life partners were in a comparable position to opposite-sex married couples); European Court of Justice, Case C-267/06 of 1 April 2008, Maruko v. Versorgungsanstalt der deutschen Buhnen (holding that denying the surviving partner of a life partnership a pension benefit that would have been granted to a surviving spouse was direct discrimination based on sexual discrimination, provided that national law placed life partners and married spouses in comparable positions with respect to survivor benefits).↵
- European Court of Human Rights, Judgment of 24 June 2010, Schalk & Kopf v. Austria, Application No. 30141/04, paras. 92, 94.↵
- Ibid., at para. 99.↵
- Ibid., at paras. 93-94.↵
- Danish Registered Partnership Act of 1989 (providing that the effects of registering a partnership shall be the same as contracting a marriage).↵
- ‘Inching Down the Aisle: Differing Paths Toward the Legalization of Same-Sex Marriage in the United States and Europe’ (2003), 116 Harvard Law Review 2004, 2021-2022.↵
- Baker v. State, 744 A.2d 864, Supreme Court of Vermont, 1999.↵
- An Act Relating to Civil Unions (Vt. 1999).↵
- ‘Inching Down the Aisle: Differing Paths Toward the Legalization of Same-Sex Marriage in the United States and Europe’ (2003), 116 Harvard Law Review 2004, 2024; Martha Minnow, ‘Redefining Families: Who’s In and Who’s Out?’ (1991), 62 University Colorado Law Review 269.↵
- J & Another v. Director General, Department of Home Affairs and Others, Constitutional Court of South Africa, 2003 ZACC 3, 28 March 2003, at para. 23.↵
- Austria’s Registered Partnership Act was signed into law just months before the hearing in Schalk & Kopf v. Austria.↵
- Varnum v. Brien, Supreme Court of Iowa, 2009; Kerrigan v. Department of Public Health, Supreme Court of Connecticut, 2008; Goodridge v. Department of Public Health, Supreme Judicial Court of Massachusetts, 2003; Brause v. Bureau of Vital Statistics, Superior Court of Alaska, 1998; Baehr v. Lewin, Supreme Court of Hawaii, 1993.↵
- William N. Eskridge, Jr., ‘Equality Practice: Liberal Reflections on the Jurisprudence of Civil Unions’ (2001), 64 Albany Law Review 853, 874 (noting that the Vermont Supreme Court in Baker v. State was “aware of the fate of earlier same-sex marriage rulings in other states” and explaining that was why it “pulled its punches”).↵
- Tina Kelley, ‘New Jersey Civil Union Law Has Fallen Short in its First Year, Commission is Told’, New York Times (28 October 2007); New Jersey Civil Union Review Commission, ‘Final Report: The Legal, Medical, Economic and Social Consequences of New Jersey’s Civil Union Law’ (10 December 2008).↵
- Lewis v. Harris, 997 A.2d 227 (2010) (Supreme Court of New Jersey) (dismissing petition in aid of litigants’ rights without prejudice to filing claim in Superior Court).↵
- Sentencia C-098/96, Constitutional Court of Colombia, 1996; Esteban Restrepo-Saldarriaga, Advancing Sexual Health through Human Rights in Latin America and the Caribbean, 85 (International Council on Human Rights Policy, Working Paper, 2011) available at http://www.ichrp.org/files/papers/183/140_Restrepo_LAC_2011.pdf.↵
- Human Rights Committee, Views of 30 March 2007, X v. Colombia, Communication No. 1361/2005.↵