In December of last year, a case against the current same-sex marriage ban in Austria was dismissed by a Viennese Administrative Court. The same legal team took another case to the Regional Administrative Court of Upper Austria in Linz today.
Using the argument that Austria is the only nation in the world that affords same-sex couples all the adoption and in-vitro rights of marriage, but not marriage itself, the attorney made his case.
He stressed that the children of the couples suffer most because not all countries recognize non-marital partnerships, such as Austria’s, or at least do not give unmarried couples from abroad the same rights as those who already married.
The attorney expressed concern that the parental rights of both parents over children in same-sex households may not always be properly recognized inside and outside of Austria and cause problems for the families.
In Austria, only couples in civil partnerships can be automatically registered as co-parents. The couple mentioned in the lawsuit is neither married nor in a partnership and fears for the recognition of their child if they are not allowed to wed in the future.
The suit also highlights the 32 differences between the country’s civil partnership law and marriage with one of the most prominent being the fact that couples in partnerships are not allowed to choose their own surname on documents after they enter a partnership. This restriction can discourage several couples from applying for a civil partnership as it may come at the expense of their privacy.
The surname clause in the country’s civil partnership legislation is sometimes nicknamed the “Pink Triangle”, an allusion to WWII, since many claim that having to register with a new designated legal name essentially outs them to others when they file any paperwork.
The Legislature had been asked some time ago by the Constitutional Court to fix all the deficiencies in the existing civil partnership law, but a bill in the conservative-leaning Parliament has stalled.
According to reports, the Linz judge seemed very empathetic to the plaintiffs’ plight, but still had some questions for the legal team:
I share their view yes, but how do you think that you could interpret the law unconstitutional? Since you will need an application to the Constitutional Court, right?
Diepresse states that three possible outcomes may occur: the lower court could ask the Constitutional Court to review the case and settle the marriage issue, it could side with the Civil Registry’s argument that the couple may not marry, or it could back the current matrimonial laws that are in place but instruct the Registry to help the couple with regards to child welfare.
The written verdict is expected to be released in a few weeks.
For more information on the LGBT rights situation in Austria, please visit: https://en.wikipedia.org/wiki/LGBT_rights_in_Austria