The problem of same-sex marriage and union within a new constitutional context

No union is as deep as marriage, because it includes the lofty ideas of love, loyalty, devotion, self-sacrifice and family. Getting married, two individuals become more than they had been before. … They ask for equal dignity before the law. The Constitution ensures that right.

From the US Supreme Court’s decision of 26.06.2015, by which the right to same-sex marriage was accepted and recognized.

The issue of same-sex marriages continues to be a controversial topic in social life, becoming sharp and urgent from time to time. Among such occasions was the constitutional amendment on 2015, and the entire process, which was preceded and followed, reveals a number of myths, stereotypes and facts related to the subject.

At the same time, that internal contradiction was noteworthy, which existed with regard to already existing constitutional amendments and changes in connection with family and marriage. On the one hand, the critics of the relevant draft article of the constitutional amendments (different structures, initiatives, individuals) were claiming that this article was aimed at permitting and spreading homosexual marriages in Armenia, on the other hand, the ruling Republican Party of Armenia (RPA) and pro-government circles, which initiated the amendments, “dispel” the “concerns” of the opponents noting that  the changes in the formulation of that article, oppositely, are intended to constitutionally exclude any legal opportunity for homosexual marriage and to block any possible loophole.

Their position on the issue were hastened to express officials (MPs Naira Karapetyan, Hrayr Tovmasyan, Hovhannes Sahakyan, Aragats Akhoyan and others), public and political figures (Vardan Ghukasyan, Sos Gimishyan, Tachat Vardapetyan, Gurgen Yeghiazaryan, Ashot Manucharyan, Vardan Khachatryan), even scholars (Dr. Gevorg Danielyan, Vardan Poghosyan) and human rights defenders (Ara Zohrabyan), as well as some structures (Pan-Armenian Parenting Committee, For the Sake of Sovereignty, Family of the Evangelical Churches of Armenia), which  were united in one point; that is – to make their homophobic views official.

Meantime, after the Venice Commission’s recommendations on this occasion and the statement made in Yerevan, the issue became more debating, and, eventually, in public and professional circles, because of the emerging atmosphere, it seems as though it has been silenced in a “consensus” that homosexual marriages won’t be possible after the constitutional amendments in Armenia. Even LGBTnews.am site felt into the trap and in the article of Wikipedia devoted to homogeneous unions, Armenia was mentioned as a country where homosexual marriages/ unions are constitutionally banned.

Current situation and the constitutional context should be analyzed in order to understand whether it is true, and whether the discussions on homogeneous marriages in Armenia will be banned once and forever, or they were just rhetorical and political thoughts or an unfounded concern.

It should be noted, that within the framework of this Article, the legal possibilities and the conditions of same-sex marriages are discussed, rather than the necessity or expediency (this issues will be discussed another time).

  1. First, of course, it is necessary to understand the nature of marriage because in practice marriage and related phenomena are often identified. It is necessary to distinguish between marriage and:
  • Family (they are interconnected, but yet different institutions).
  • Engagement, wedding ceremonies and other celebrations.
  • So called civil / factual marriage, when two persons temporarily or permanently reside together.
  • Sexual relations between two persons.
  • Weddings and other religious ceremonies. By the way, to this concern it should be noted that although RA Law on Relations between the Republic of Armenia and the Armenian Apostolic Church envisages the state’s acknowledgment of marriages made in the Church (Article 9. The Republic of Armenia recognizes marriages made in

and divorces proclaimed by the Armenian Apostolic Church in accordance with the procedure laid down in the signed agreement between the Government of the Republic of Armenia and the Armenian Apostolic Church). But,  first of all, this issue should be settled by the agreement to be signed with the Government of Armenia, which does not exist right now, secondly , the main act regulating the family sector,  RA Family Code, according to the Law on Legal Acts, prevails over the above-mentioned law. Moreover, according to the second part of Article 1 of RA Family Code, only the marriages registered in Civil Acts Registration Office is recognized.

  • Civil unions or another forms of coexistence of two same-sex persons, which are legally accepted in some countries, but it significantly yields and differs from the status of marriage with its status and its subjects’ legal status (this version is used as a compromise and an “intermediate transition” option). Although this version may temporarily replace the marriage providing same-sex couple with legal status (certain amount of rights and responsibilities) and provide a relatively acceptable version of legal defense (more information is provided below).

Thus, it is obvious that when discussing issues of homosexual marriages (also unions), the fact of recognition by the state should be assessed exclusively, that is, the specific legal status given to the married couple and the specific legal nature of recognized legal relations and relationships. In other words, marriage is considered to be the relationship only legally-recognized by the state.

  1. Now let’s find out to what extend and how the concept of marriage is manifested and regulated in constitutional texts. 

Thus, the second paragraph of Article 51 of the 1978 Constitution of the Armenian SSR (it has acted before the adoption of the Constitution of 1995, with some amendments and additions made after the independence of the Republic of Armenia) defined: “Marriage is based on the voluntary consent of a man and a woman, and the partners are fully equal in family relations.”  Surely, in this case, the notion of marriage is not disclosed, but its heterogeneous structure becomes clear.

 The Constitution, adopted in 1995, was probably the most “liberal” one – paragraph 2 of Article 32 proclaimed: “Women and men have equal rights when they marry, during marriage and in divorce.”

In fact, the Constitution did not propose any distinctive feature on the grounds of sex without even revealing the concept of marriage. It’s noteworthy, that Article 43 of the same Constitution fixed: “The rights and freedoms set out in the Constitution are not exhaustive and can not be interpreted as exclusion of other human rights and freedoms.”

In the revised Constitution of 2005, paragraph 2 of Article 35 was edited as follows: “Men and women of marriageable age have the right to marry and to start a family by free expression of their will. When they get married, during marriage and divorce, they enjoy equal rights”.

This definition, not covering the notion of marriage as well, affirms the pretensions of woman and man toward it. That is, in other words, there is the phenomenon of “marriage”, the right of which have two heterogeneous persons. In this case, first, there is no ban on same-sex marriages, then, in accordance with Article 42 of the Constitution: “The fundamental human and civil rights and freedoms enshrined in the Constitution do not exclude other rights and freedoms prescribed by laws and international agreements” . In other words, at the level of domestic legislation or international treaties (in the case of the ECHR, also taking into consideration the fact of their interpretation), the adoption of homosexual marriages by the state could be envisaged.

 

As a result of the above-mentioned controversial 2015 constitutional amendments, Article 35 of the Constitution entitled “Freedom of Marriage” was singled out in the Constitution, which states:

  1. Men and women of marriageable age have the right to marry and to start a family by free expression of their will. Law defines marriage age, marriage and divorce procedures.
  2. When marrying, during marriage and divorce, both men and women have equal rights.
  3. Freedom to marry can only be restricted by law for the protection of health and morals.

As we have seen, in our constitutional law, the concept of marriage is absent. It is worth mentioning that it is and was missing from family law as well. Simply, additional procedures or conditions are envisaged, which are necessary to preserve for state recognition and marriage registration.

  1. Let’s pass to the discussion of the provisions laid down in the above-mentioned Article 35 of the current Constitution.

During 2015 constitutional amendments, the argument, that with the new formulation of Article 35 the possible loophole  of same-sex marriages will be closed, was brought because in the sentence, Men and women of marriageable age have the right to marry with each other and to start a family by free expression of their will” , the expression  “with each other” has been added .

Let us now introduce the formulations of homosexual marriages in terms of the legal technique.

Direct prohibition or restriction: impermissibility of legalization of homosexual relationships, which is less common. An example of this  is “Defense of Marriage” act (known as DOMA), the second article of which defines that any subject of public authority is not obliged to recognize the union of two same-sex persons as a marriage or to grant that right to those persons, and the third part was obliging to consider marriage only the union of  a man and woman, later on, of course, the 3rd  part of the Act was recognized anti-constitutional by the US Supreme Court in 2013 (United States v. Edith Windsor case), and the second part was transformed by 2015 decision (Obergefell v. Hodges case).

Indirect prohibition or restriction, which is quite common. In this case, the Constitution enshrines the concept of marriage, from which it becomes clear, that such a one can be only a heterogeneous union, or its heterogeneous composition is indicated. Thus, for example, “The state recognizes marriage as a union of men and women” or “Marriage is based on voluntary consent of a man and a woman”.  Among such countries are Hungary, Bulgaria, Latvia, Lithuania, Poland, Montenegro and so on.

– The Constitution doesn’t refer to this issue, and it is regulated by the current legislation.

– Marriage is formulated as a union of two persons without mentioning the sex (the Irish Constitution, a referendum was held to make this change) or directly affirms the right of every person to marry (US Supreme Court’s 2015 decision).

– Armenian example: when the concept and the composition of marriage is not mentioned, it appears to be a phenomenon outside the constitution and the right of a woman and a man. In this case, the interpretation and tradition of legal perception is important.

There is no prohibition or other limitation on homosexual marriage in any article or provision of the Armenian Constitution, and according to the Law, belonging to the same-sex is not mentioned among the unacceptable conditions referred to in Article 11 (close relatives or incapacitated, being married, etc.).

In other words, the principle,  “Everything that is not prohibited by law, is permissible”,  is valid, which is visible in the Article 39 of the Constitution, which enshrines the right to act freely in the following way:  “A person is free to do everything that does not violate the rights of others and does not contradict the Constitution and laws”.

Besides, if we pay attention to the linguistic structure of the wording, we notice that the Constitution does not give a definition to the concept of marriage (as it exists in the constitution of a number of countries), as well as does not exclude (prohibit, restrict) the right to same-sex marriage. It only indicates that a man and a woman of marriageable age have the right to marry. In other words, there is the phenomenon of “marriage” in itself, and a woman and a man have the right to use it, not excluding this right of others.

In other words, in this case, only the union of a  man and a woman is emphasized and is considered to be essential in accordance with the priorities of the state’s policy.

Just in the same way and logic as, for example, Article 45 of the Constitution states: “Everyone has the right to freely associate with others; including the right to form and join trade unions for the protection of labor interests”.

In this case, we understand that a person can join various organizational structures, in addition the trade union has been highlighted in order to emphasize its importance, which does not mean that the Constitution excludes the individuals to unite, for example, in order to form a non-profit organization or a fund.

Or Part 2 of Article 38 of the Constitution defines: “Everyone has the right to receive free education in state higher and other professional educational institutions on a competitive basis in the cases and in the manner prescribed by the law”.

This means that the right of a higher education institution to receive free education is underlined and does not reveal the exhaustive type of other professional institutions, and we can not consider that, for example, in a legally formed new type of state educational institution,  the right to free education is limited.

The Venice Commission has developed such a logic, in the conclusion of which it was stated: Articles 34 (revised edition 35) and 15 (revised edition16) should not be interpreted as prohibiting the legal recognition of same-sex marriages.

Moreover, the process of interpretation and application of constitutional norms cannot ignore the fact that Armenia is a subject of the international community and part of its legal system. This fact is further highlighted in Article 81:

  1. While interpreting the constitutional provisions on fundamental rights and freedoms, the practice of bodies based on international human rights treaties ratified by the Republic of Armenia, shall be taken into account.
  2. Restrictions on fundamental rights and freedoms may not exceed the limitations set out in the international treaties of the Republic of Armenia.

As we have noted, the option of solving the created situation in terms of the norm enshrined in the Article 35 of the current Constitution is the relevant addendum by interpretation, which is eligible to make the Constitutional court, determining the constitutional content of the particular article taking into account the positions of the European Court of Human Rights (studying CC decisions, we clearly notice the almost unconditional acceptance of the ECHR positions by the Constitutional Court) and, thus, directing the National Assembly to make legislative amendments.

And before that, we can admit that there is a legislative gap (but not a ban), as it turns out that, on the one hand, there is no barrage / restriction, at the same time, same-sex marriage or union recognition is not clearly enshrined in the domestic law. There is a regulation gap, which hinders same-sex couples to effectively protect their rights due to a certain status.

At the same time, when the unconstitutionality of the law will be disputed, the Constitutional Court can assess the inferiority of marital rights (also the rights deriving from them) of homosexuals…

in conjunction with other constitutional norms and principles (prohibition of discrimination, the right to marry, right of association, effective protection of rights, consideration of  practices of international judicial bodies and so on),

– taking into account current social realities and public opinion pressure,

 – ECHR decisions, especially, considering Oliari and others v. Italy decision of July 21, 2015, which can have a precedential importance in terms of universal and mandatory recognition of same-sex marriages at least within the Council of Europe.

In addition, one of the temporary solutions to the current situation is, perhaps, the possibility of using analogue based on Article 5 of the RA Family Code, when the court or other competent authority, developing or implementing a legal policy in marital or adjacent areas, will apply the legal regulations on spouses also in  case of  homosexual couples.

In any case, it should be noted that even if there are different interpretations on homosexual marriages, it’s obvious, that there is no constitutional restriction or prohibition on homosexual unions as a family right or a social institution in general.

Otherwise, if CC considers legal non-regulation (restriction or prohibition) of same-sex marriages, we will face a deadlock situation – a constitutional gap, and especially in line with discrimination, also facing an inter-constitutional contradiction (maybe a crisis) – a question will arise.

Summing up the above-mentioned, we should add that all the arguments, according to which same-sex marriages are constitutionally prohibited or restricted, are, thus, unreasonable and groundless. At the same time, the authors of the amendments and the propagators could not be unaware of this fact (especially, at the background of current trends), who, as high-level constitutionalists and cunning politicians, have formulated this constitutional norm so that, on the one hand, the Venice Commission and other international structures accept it positively, and, on the other hand, they could preserve their conservative image.

With co-authorship of Evil Wolf and Nif-Nif