The ruling notes gays and lesbians have been able to legally register their partnerships in Austria since 2010. A translation of the ruling states civil partnerships have “become even closer to marriage,” noting same-sex couples can jointly adopt children and access in-vitro fertilization and other forms of medically assisted reproduction.
“However, the distinction between marriage and registered partnership can not be maintained today without discriminating against same-sex couples,” reads the ruling. “The separation into two legal institutions expresses that people with same sex sexual orientation are not the same people with different gender orientation.”
The ruling paves the way for the removal of the phrase “different sex” from Austria’s marriage law on Dec. 31, 2018. It also allows unmarried heterosexual couples to enter into civil partnerships once it takes effect.
“After the annulment, marriage and registered partnership are open to both same- and opposite-sex couples,” reads the ruling.
The case of two women in a civil partnership who were unable to enter into a formal marriage in Vienna prompted the ruling. The court said same-sex couples “who have lodged a complaint with the Constitutional Court prior to the resolution” may be able to legally marry before Dec. 31, 2018.
There are four additional marriage cases that are currently before the court.
“This decision opens up marriage and registered partnerships to all couples,” said ILGA-Europe Executive Director Evelyne Paradis in a statement. “It is a really positive and refreshingly inclusive judgment.”
The Associated Press reported the center-right Austrian People’s Party and the right-wing Freedom Party — which are working to form a new government in the predominantly Roman Catholic country after elections that took place in October — oppose marriage rights for same-sex couples. The center-left Social Democrats support nuptials for gays and lesbians.
Kurt Krickler, secretary general of Homosexuelle Initiative (HOSI) Wien, a Vienna-based LGBT advocacy group, told the Washington Blade on Tuesday from the Austrian capital that same-sex and heterosexual couples will be able to enter into marriages or civil partnerships by Jan. 1, 2019, “unless the legislature will amend the laws on marriage and/or registered partnership.”
“In theory, Parliament could open marriage for all and abolish registered partnerships totally,” said Krickler. “The reactionary and conservative parties, holding a majority, are more afraid to open (registered partnerships) to heterosexuals than marriage for lesbians and gays as they consider offering a modern alternative to marriage will further weaken and be more damaging to traditional marriage than opening it for everybody.”
“We will see how Parliament will amend the legislation,” added Krickler. “Marriage — and especially divorce — legislation is very old-fashioned and anachronistic in Austria, which is the reason why HOSI Wien only demanded marriage for all under the pre-condition of a complete reform of marriage laws.”
Krickler told the Blade that HOSI Wien demands “registered partnerships must remain in force as a progressive alternative” in case “marriage is not modernized in the context of opening it for same-sex couples.”
Austria is a central European country that borders Germany, Switzerland, Liechtenstein, Italy, Slovenia, Hungary, Slovakia and the Czech Republic.
Voters in Slovenia — the country in which first lady Melania Trump was born — in December 2015 rejected a same-sex marriage law that the country’s Parliament overwhelmingly approved a few months earlier.
A referendum on whether to amend the Slovak constitution to define marriage as between a man and a woman and ban gays and lesbians from adopting children failed in February 2015 because of insufficient turnout. The Hungarian constitution explicitly bans gays and lesbians from tying the knot.
Italy’s highest court in 2015 ruled same-sex couples are not entitled to marriage rights under the country’s constitution. The European Court of Human Rights in the same year issued a decision that said same-sex couples in Italy face human rights violations because the country has not “sufficiently” recognized them.
A law that allows same-sex couples to enter into civil unions in Italy took effect in June 2016.