Monday, 12 February 2018

Showdown for same-sex marriages in Greece



In a more or less anticipated outcome, the Supreme Court of Greece denied a certiorari sought by two Greek men, who concluded a civil wedding on the island of Tilos nearly 10 years ago. The court made a clear distinction between registered partnerships and marriage: Whereas the former is now open both to hetero- and homosexuals, the latter – so the Supreme Court – is not covered by Greek legislation. The final act is expected to take place before the ECHR. 



THE FACTS

On June 3, 2008, the mayor of the island of Tilos allowed the celebration of wedding of the appellants, two Greek men, in spite of intensive reaction coming both from the representatives of the Greek Orthodox Church and the Prosecution office. More info here


Following an action of the Prosecutor, the wedding was declared as non-existing by the Rhodes 1st Instance Court. An appeal of the couple before the Dodecanese Appeal Court remained fruitless. More info here


Litigation continued, reaching the Supreme Court. The hearing took place mid December 2016; the ruling was published late August 2017, putting an end to the gay wedding saga in Greece, at least for the time-being.More info here

THE RULING

Initially, the SC made reference to Articles 12 ECHR, 23 of the 1966 International Covenant on Civil and Political Rights, concluding that the above instruments do not give any guidance in regards to the question. It then passed to the famous definition given by Modestinus [Marriage is the union of male and female and the sharing of life together, involving both divine and human law]. The SC focused then on the Greek Constitution, referring to three provisions: Article 4.1 on equal rights; Article 5.1 on the right to develop freely one’s personality; and Article 21.1 on the protection of marriage by the state.

The SC concluded that none of the above provisions are infringed by the prohibition of same-sex marriage in Greece. In particular, the SC stated that sexual freedom, as part of the right protected under Article 5.1, is by no means violated; this becomes evident by the recent reforms on the issue of registered partnership, which is allowed for same-sex couples since 2015. This step however does not mean that same-sex couples are allowed to formalize their relationship by entering into a marriage. If the legislator wished to do so, he would have taken the necessary steps, by amending the pertinent provisions.

In addition, the wording under Article 1367 Greek Civil Code [the intending spouses] should not be construed as covering both heterosexual and same-sex couples. It is a construct which dates back to 1940, and it is self-evident that it refers solely to spouses of a different sex. Beyond that, it has been chosen for purely drafting purposes.

The SC is also aware of the recent case law of the ECHR with respect to the notion of family, which includes same-sex couples; still, the Court continues, the ECHR has not decided on the form which enables same-sex couples to be considered as a family, i.e. by registered partnership or any other fashion.

Finally, the SC acknowledges that many European countries have recognized same-sex marriages. However this could not be a reason for the court to grant the certiorari; this is rather an issue for the Greek legislator, who will weigh whether reforms should take place at a time he sees fit.

COMMENT

It wouldn’t be an exaggeration to say that nobody is taken by surprise with respect to the SC’s ruling. Given the socio-political landscape of the country, the prevailing role of the Greek Orthodox Church and the ambiguities in the law, it was a rather expectable outcome.

In light of this judgment, it is beyond any doubt that same-sex marriages stand no chance of being recognized in Greece; hence, they are excluded from the ambit of the Brussels II bis Regulation. Similarly, Greek courts are not expected to apply foreign law which refers to same-sex married couples (see in this respect Article 13 Rome III Regulation). Same-sex marriages are considered non-existing ipso facto, i.e. no court ruling is needed for declaring the marriage as null and void.  

It seems though that the ball will go to the court of the ECHR; this is at least what the appellants announced. The Hellenic Republic has proven its respect to the rulings of the European Court, most notably in regards to the case of Vallianatos and others v. Greece: Following the ruling of the court, which found a violation of Article 14 in conjunction with Article 8 ECHR, Greece amended its legislation on registered partnerships, by including same-sex couples in its field of application. Some might consider the latter being the final frontier for the country and the Greek society at large. Others might be more optimistic, given that many fortresses of the past have fallen within the last couple of years: Greece passed recently legislation on gender reassignment. In addition, the SC departed from previous rulings which found a public policy violation in the adoption of an adult [see here]. It remains to be seen for how long the ruling of the SC will stand the test of time.

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