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Spain, Constitutional Court, STC 198/2012, 6 November 2012

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Suggested Case(s)
Relevant Judicial Dialogue Techniques
Deciding bodies and decisions
Constitutional Court, STC 198/2012, 6 November 2012,
Area of lawBack to top ▲
Subject matterBack to top ▲
Does the Spanish Constitution allow for same-sex marriage?
Summary Facts Of The CaseBack to top ▲

The Civil Code was amended by Law 13/2005 to allow for same sex marriage. This law was challenged before the Constitutional Court by more than 50 Deputies of the Popular Party. The applicants claimed that the recognition of same sex marriage clashed, inter alia, with Article 32 of the Spanish Constitution, which sets forth that men and women have the right to marry.
The Spanish Tribunal Constitucional followed an evolutionary interpretation of the Constitution and held that Article 32 of the Constitution did not prevent the legislator from passing a law to allow for same sex marriage . The Court indicated that the recognition of same sex marriage was a legislative option supported by the principle of equality, but failed to ground its decision upon the right to non-discrimination on the basis of sexual orientation.
The Tribunal Constitucional made use of comparative law, by making reference to the legislation and court decisions in other countries. The Tribunal initially referred to a Privy Council precedent solely to borrow the image of the Constitution as a “growing tree,” but it then mentioned the use of this analogy in the Canadian Supreme Court’s judgment on same-sex marriage, displaying a clear comparative effort used to support the assessment of the very legal point it was seized of. Similarly, the Tribunal introduced a full overview of the jurisdictions recognizing same-sex marriage, either under their laws or subsequent to a judicial decision (see the reference to the Massachusetts Supreme Court and the Constitutional Court of Slovenia
Also, the Tribunal Constitucional opted for a consistent interpretation of Article 32 of the Constitution in light of the ECtHR’s case-law. In Schalk and Kopf v. Austria, the Strasbourg Court had issued an evolutionary interpretation of Article 12 ECHR, drawing support from the literal tone of Article 9 of the EU Charter of Fundamental Rights, which does not explicitly refer to men and women.

Relation to the scope of the CharterBack to top ▲
The Tribunal addressed the rationale of the newly enacted Law 13/2005. It identifies the purpose of the law in the “equation between the legal status of homosexual and heterosexual persons,” and evokes several ECtHR’s decision, as well as Art. 21 of the EU Charter of Fundamental Rights as evidence that this purpose is underpinning a general trend. The case-law of the Strasbourg Court is also heavily cited to prove that States enjoy a wide margin of discretion in regulating the possibility to extend the institution of marriage to same-sex couples.
Significantly, the Tribunal takes also the opportunity to mention a case (regarding discrimination on grounds of sexual identity), in which its position on the equal treatment rights granted to a transsexual parent was later sanctioned by the Court of Strasbourg.
Notes on judicial interactions dimensionBack to top ▲
  • Vertical (constitutional court – ECtHR; constitutional court – EU law)
National law, including the constitution, must be interpreted in conformity with ECHR and EU law obligations. Since Spain shares the constitutional instruments on fundamental rights that belong to the EU and ECHR systems, it cannot ignore their content and the case-law that stems therefrom, and possibly it is called to respect them, at least through the duty of consistent interpretation codified in Art. 10(2) of the Constitution. Interestingly, the Tribunal cites the Schalk v. Kopf case, that several other national courts put forward as example of the absence of an obligation to recognize same-sex marriages. The Tribunal, instead, highlights the passages where the ECtHR acknowledges that marriage is not necessarily a heterosexual union. Together with Fretté and the other similar cases, this judgment serves the purpose of validating the ECHR-compliance of Ley 13/2005, and crowns the Tribunal’s effort to frame it as a normal expression of evolutionary constitutionalism, rather than an unconstitutional extravagance.

  • Horizontal (constitutional court – foreign courts).
Foreign legislation and case-law can provide useful elements to reinforce judicial reasoning in constitutional cases. In this case, Supreme Court of Slovenia , Supreme Court of Massachuttes, Privy Council and Canadian Supreme Court.
This case is a prime example of the use of comparative method to strengthen judicial reasoning in fundamental rights adjudication. Interestingly, and somewhat differently from the other cases in this handbook, this judgment is in response to a challenge to provisions establishing advanced same-sex rights (in the other instances, the proceedings usually originate from challenges to the lack of similar provisions, or invocations of equal treatment by members of a discriminated group). In other words, in this instance the case of the claimants is built on the assumption that equal treatment does not serve the purpose of equality, since it concerns two situations that are so different that fairness would require the law to treat them differently. Being this a matter of purely constitutional nature, the Tribunal is keen to draw from external sources and engage in comparative analysis to bring ammunition to its opinion. The intensive use of normative and judicial examples from other jurisdictions is geared towards the demonstration that a global trend is in action, and that therefore the constitutional soundness of the law impugned is out of question.
Sources - ECtHR Case LawBack to top ▲
Fretté v. France (App. no. 36515/97), 2002
Schalk v. Kopf
Sources - Internal or external national courts case lawBack to top ▲
Privy Council, Edwards v A.G. Canada [1930] AC 123, 1 DLR 98 (PC).
Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698, 2004 SCC 79.
Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003).
Judgment of 2 July 2009, Blažič and Kern v. Slovenia U-I-425/06-10.