a) Hungary / b) Constitutional Court / c) / d) 25-03-2010 / e) 32/2010 / f) / g) / h) .
Keywords of the Systematic Thesaurus:
Fundamental Rights - Equality.
Fundamental Rights - Equality - Criteria of distinction - Sexual orientation.
Fundamental Rights - Civil and political rights - Right to marriage.
Fundamental Rights - Civil and political rights - Right to self fulfilment.
Keywords of the alphabetical index:
Marriage / Homosexuality, couple, same-sex.
The Registered Partnership Act, under which the institution of registered partnership is only available to same sex couples, is not contrary to the Constitution.
I. In December 2008, the Constitutional Court in its Decision no. 154/2008, annulled the Registered Partnership Act before it entered into force. The Court held that the establishment of the institution of registered partnership for same sex couples is not unconstitutional. Nonetheless, it annulled the Act, on the basis that for different sex couples, the registered partnership was a doubling-up of marriage, which resulted in the devaluation of the institution of marriage.
In line with the Court's decision, the Parliament adopted a new Registered Partnership Act (hereinafter, the "Act"). This restricted registered partnerships to same sex couples. Almost all the rules of marriage applied, apart from the right to take a common surname, the right to adopt and to participate in assisted reproduction.
Several petitions were lodged, seeking a constitutional review of the Act. The arguments were diverse. Some argued that the new legal institution undermines the institution of marriage, others that excluding different sex couples is discriminatory. There were legal arguments against the technique of codification (a general clause equating registered partnership with marriage for most purposes), but also religious arguments that homosexuality is disorderly and immoral.
II. However, the Court, reaffirming its previous decision, rejected the above claims, on the basis that the right of same sex couples to legal recognition and protection can be derived from the fundamental right to human dignity and that the introduction of an institution similar to marriage for same sex couples is a duty of the state imposed by the Constitution.
The Court added that the Act could play a positive role in promoting the social acceptance of same sex couples and help gays and lesbians to come out.
The Court noted that not all differences between marriage and registered partnership are necessarily discriminatory, holding, for example, the current differences (no right to take the partner's name, to adopt children, and to participate in assisted reproduction) constitutional.
Under the Act, registered partnership is a family law institution that is established by joint declaration in front of a registrar. There could be no constitutional reason for the registrar to reject the request of the same sex couple to establish a registered partnership. When, in spite of that, the registrar refuses to register the partnership, the couple and the witnesses can later testify and based on this the partnership can be established by another registrar.
Justice András Bargyova attached a concurring opinion to the judgment. He noted that it would have been enough for the Court to say that registered partnership is not a marriage; therefore the Act concerning the registered partnership could not violate Article 15 of the Constitution (protection of marriage).
Justice László Kiss attached a concurring opinion, in which he stressed that the registrar (based upon conscience reasons) can refuse to establish the registered partnership, because not her/him, but the state is obliged to register the same sex couple.
Justice Elemér Balogh, Justice Péter Kovács and Justice László Kiss attached dissenting opinions to the decision. According to them, the Court should have annulled the whole Registered Partnership Act.