Constitutional Court legalises same-sex marriage, adoptions

Ljubljana – The Constitutional Court legalised same-sex marriage and adoptions with immediate effect after finding a law under which only heterosexual partners can marry and same-sex couples cannot adopt children to be in contravention of the constitutional ban on discrimination.

In two rulings issued on Friday, the court gave the National Assembly six months to amend the law accordingly, but until the law is amended its ruling stands as the law and means that marriage is a union between two persons regardless of gender, and same-sex partners living in a civil partnership may adopt a child together under the same conditions as married spouses.

The court deliberated on the matter based on a constitutional complaint by two same-sex couples who, respectively, failed in front of regular courts to marry or to make the list of candidates for adoption.

Referring to marriage, it said discrimination against same-sex couples “cannot be justified with the traditional meaning of marriage as a union between a man and a woman, nor with special protection of family.”

The decision “does not diminish the importance of traditional marriage as a union of a man and a woman, nor does it change conditions under which persons of the opposite sex marry. All it means is that same-sex partners can now marry just like heterosexual partners can.”

Same-sex partners have so far been confined to civil unions, which gave the partners some but not all the rights of heterosexual partners.

The court used a similar argument for same-sex adoptions as it noted that same-sex couples have already been allowed to adopt each other’s children.

The ban on same-sex adoptions cannot be justified with the objective of maximum benefit for children since “an absolute ban … is not a suitable means to achieve this end.”

It said the goal of maximum benefit for children must be pursued on a case-by-case basis, whereby eliminating same-sex partners from consideration “cannot be construed as a measure that would improve the possibility of a decision that is to the maximum benefit of the child.”

The court was however quick to point out that its decision “does not introduce a right to adoption,” all it means is that the legislature must bear in mind the prohibition of discrimination and make it possible for same-sex partners to be placed on the list of candidates for adoption.

The court voted 6:3 in favour in both rulings, the dissenting voices coming from three judges who often lean conservative, none of whom expressed direct opposition to same-sex marriage or adoptions, they merely challenged in dissenting opinions the way that the majority on the court arrived at the decision.

One dissenting judge, Rok Svetlič, said the majority’s arguments were “paving the way for the assertion of unconstitutionality of any provision” and implied the Constitutional Court may have overreached by playing the rule of the legislature.

Another dissenting judge, Klemen Jaklič, meanwhile said that the majority did not truly address the dilemmas about which it was deciding.

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