Acórdão N0. 359/2009, Processo N0. 779/07, 1a Secção, Tribunal Constitucional, Portugal (9 July 2009)
The petitioners appealed a ruling of the Lisbon Court of Appeal, which had confirmed a lower court’s decision.
Denied the right to marry, a lesbian couple appealed to the Constitutional Court.
Whether denial of the right to marry violated constitutional rights.
Constitution of Portugal, Articles 13 (non-discrimination) and 36 (right to marry).
Civil Code of Portugal, Article 1577 (marriage is a contract entered into by persons of different sex).
Reasoning of the Court
The petitioners argued that Article 1577 of the Portuguese Civil Code unconstitutionally prohibited same-sex marriage. They cited Articles 13(1) and 36 (1) and (2) of the Constitution of Portugal to support their claim. They also argued that marriage was an expression of personal identity and the development of personality. As such, same-sex marriage should be granted in a State bound by the rule of law and based on the primacy of human dignity and freedom.
The respondent, the Public Prosecutors’ Office, argued that the Court could not legalise same-sex marriage. Such an action would effectively violate the separation of powers in Portugal’s legal regime. Furthermore, the Public Prosecutors’ Office argued, the legislature had no obligation to recognise a concept of family that included same-sex couples.
The Court accepted the Public Prosecutors’ Office’s assertion that a decision legalising same-sex marriage would overstep the Court’s constitutionally defined authority. The Court, therefore limited its ruling to the question of Article 1577’s constitutional validity.
It found that Article 1577 was valid for several reasons. First, the Court believed that Article 1577 of the Civil Code did not contravene the Constitution’s prohibition of discrimination based on sexual orientation. It believed that, since the Constitution granted the legislature the power to “regulate the requirements for and the effects of marriage”, it had power under the Constitution to limit marriage to persons who were of opposite sex. Second, it believed that the effect of Article 13(2) was limited to the legal order’s neutrality with regard to a person’s sexuality. Third, the Court stated that, had the legislature intended to include same-sex marriage when it added “sexual orientation” to Article 13 (2), it would have done so explicitly. Fourth, Article 36 of the Constitution was contextualised within the framers’ intentions. The Court said that, because Article 36 expressly mentioned but did not define marriage, the Constitution’s framers did not intend to stray from the traditional understanding of marriage between a man and a woman. Had the drafters intended to break with tradition and include same-sex marriage, the Court reasoned that the legislature would have done so expressly. “At every point in history, it is the legislative authorities that possess the democratic legitimacy to ‘read’ and translate the consequences, implications and requirements at that moment in time of the principles ‘laid out’ in the Constitution, and position them appropriately in the legal system.”
Finally, the Court held that its understanding of Article 36 did not mean that Article 36 prohibited same-sex marriage. If the legislature recognised evolving social norms, it could recognise such marriages and amend Article 1577. Finally, the Court believed that court-ordered same-sex marriages would violate the sovereignty and power of the voting public to elect representatives to make political choices on their behalf.
The Court declined to recognise the plaintiff’s right to marry, noting that only the legislature had to power to confer that right upon them.
In 2010 the Portuguese legislature passed a law legalising same-sex marriage. In decision Number 192/2010, the Constitutional Court affirmed that the same-sex marriage law was constitutionally valid. Portugal’s President subsequently signed it into law.
Acórdão N0. 359-2009, Processo N0. 779-07, 1a Secção, Tribunal Constitucional, Portugal – Portuguese (full text of judgment in Portuguese, PDF)
Acórdão N0. 121-2010, Processo N0. 779-07, Plenário no Tribunal Constitucional, Portugal – Portuguese (full text of judgment of the Plenary of Constitutional Tribunal in Portuguese, PDF)