a) Hungary / b) Constitutional Court / c) / d) 13-03-1995 / e) 14/1995 / f) / g) Magyar Közlöny (Official Gazette), 20/1995 / h) East European Case Reporter of Constitutional Law, 1995, vol. 2, n° 2, 194.
Keywords of the Systematic Thesaurus:
Constitutional Justice - Decisions - Types - Suspension.
Fundamental Rights - Equality - Criteria of distinction - Gender.
Fundamental Rights - Equality - Criteria of distinction - Sexual orientation.
Fundamental Rights - Civil and political rights - Right to dignity.
Fundamental Rights - Civil and political rights - Right to family life.
Keywords of the alphabetical index:
Marriage / Homosexual, partnership.
Not allowing marriage between persons of the same sex does not amount to negative discrimination on the basis of sex. However, the enduring union of two persons may realise such values that it can claim legal acknowledgement irrespective of the sex of those living together. Therefore, the fact that respective legal regulations acknowledge only those partnerships outside marriage where a man and a woman live together in the same household and form an emotional and economic union, is contrary to the Constitution.
The petitioner requested the constitutional review of Article 10.1 of Law IV of 1952 on Marriage, Family and Guardianship, according to which «men and women of legal age may get married». The petitioner also requested the review of Article 578/G of Law IV of 1959 on the Civil Code regulating the financial relations of those living in the same household and defining the notion of partners in a domestic partnership as «a woman and a man living together in the same household who form an emotional and economic community outside a marriage». In the petitioner's opinion, the two legal regulations in question negatively discriminate on the basis of sex by making it impossible for persons of the same sex to get married and by not acknowledging their domestic partnership.
In its proceedings, the Constitutional Court began with the idea that both in Hungarian culture and law, the institution of marriage is traditionally the union of a man and a woman. The ability to procreate and give birth to children is neither the defining element nor the condition of the notion of marriage, but the idea that marriage requires the partners to be of different sexes is a condition that derives from the original and typical designation of marriage. The institution of marriage is constitutionally protected by the State with respect also to the fact that it promotes the establishment of families with common children. This is the reason why Article 15 of the Constitution mentions the two subjects of protection together: «The Hungarian Republic protects the institutions of marriage and the family.»
Equality between man and woman has a meaning if we acknowledge the natural differences between man and woman, and equality is realised with respect to this. The Constitution only poses the requirement of equal regulation of the conditions of marriage between persons of different sexes, which excludes the legal possibility of marriage between persons of the same sex. On the basis of the above, the Constitutional Court has reached the conclusion that the challenged regulation does not discriminate either in terms of sex or in terms of other conditions, and thus does not violate Article 70/A of the Constitution.
The challenged regulation cannot be related to Article 66.1 of the Constitution, since the regulation has no reference to the equality of men and women. The regulation in the law on family rights denying marriage to persons of the same sex prohibits men and women equally from marrying persons of their own sex.
As regards partnerships outside marriage, the sole legal definition of domestic partnership can be found in Article 578/G.1 of the Civil Code. According to this definition, «the partners in a domestic partnership are a man and a woman living together in a common household and in an emotional and economic community, outside a marriage». It is a fact that domestic partnership exists typically between men and women and this is also what public opinion understands by this notion. But the legal acknowledgement of domestic partnership has an incomparably shorter history than that of marriage. Judicial practice began to acknowledge domestic partnerships in the 1950s and such partnerships were incorporated into important regulations only between 1961 and 1977. The cohabitation of persons of the same sex, which in all respects is very similar to the cohabitation of partners in a domestic partnership - involving a common household, as well as an emotional, economic and sexual relationship, and taking on all aspects of the relationship against third persons - brings up today, albeit to a lesser extent, the same necessity for legal acknowledgement just as in the fifties for those in a domestic partnership.
The sex of partners and relatives can, of course, be significant when the regulation concerns a common child or concerns a marriage with another person. However, where these considerations do not apply, the exclusion from domestic partnerships of persons of the same sex living in a common household and in an emotional and economic union, is arbitrary and thus violates human dignity.
The legally effective notion of partners in a domestic partnership is defined by the Civil Code. The constitutionality of this cannot be determined on its own, but depends on whether the distribution of rights and duties among those who are in the same situation is done in a manner that respects the right to equal human dignity, that is, permitting equal treatment of persons and evaluating their points of view with like circumspection, attention, impartiality and fairness. The legislator can create a situation that is in harmony with the Constitution while leaving untouched the legal notion of domestic partnership that is in effect now. Thus the Constitutional Court did not decide on the constitutionality of the definition in Article 578/G.1 of the Civil Code, but instead suspended its proceedings until 1 March 1996.