Judicial activism at its worst: Austrian Constitutional Court invalidates ban on same-sex adoptions

The Austrian Constitutional Court has today released a decision through which it will become possible for same-sex couples to jointly adopt children. Prior to that decision (and following to the controversial decision of the European Human Rights Court (ECtHR) in the case of X and Others against Austria), it was already possible for a gay or lesbian person to adopt the (natural) child of his or her partner in sodomy (so called “second parent adoption”). Today’s decision is the logical final step of this aberrant development.

What underlies the decision is the assumption that everybody has a “Right to a Child”, no matter how that child is obtained. The poor child is left completely defenceless against the imposition of being adopted by two gay wannabe “parents”.

Adoption does not protect “families”, it creates them

The Constitutional Court bases its decision on Article 8 of the European Human Rights Convention, which in Austria is directly applicable as a constitutional law. That provision protects the “right to respect for one’s private and family life”. The Constitutional Court opines that although Article 8 does not guarantee a “right to adopt a child” to anyone, such a “right” – if provided for by domestic laws – nevertheless falls within the remit of that provision. For this reason, the non-discrimination clause of Article 14 of the Convention applies with the effect that same-sex couples must have the same “rights” as different-sex couples.

Like in some of the recent case-law of the ECtHR, this decision betrays a fundamental misunderstanding (or deliberate misinterpretation?) of Article 8 of the Convention:

  • The adoption of a child is a public act, not a part of “private life”. What the applicants really want is not to be protected against intrusions into their private sphere, but to be publicly recognized as “parents” of a child of which in actual fact they are not the parents.
  • The adoption of a child is also not a part of any existing “family life” for which protection can be solicited under Article 8. Instead, adoption creates (the legal fiction of) a family life.
  • The relevant Convention provision for anything that has to do with the creation of a family is Article 12: the right to “marry and found a family”. That right, however, is guaranteed only to “men and women”, i.e. to different-sex couples.
  • The Constitutional Court also fails to take into account that – according to ECtHR case law – the Convention allows Member State to provide a specific status to marriage between a man and a woman, to the effect that there is no obligation to grant equal treatment to any other constellation of people who share a household. The Constitutional Court’s assertion that the Convention requires same-sex “registered partnerships” to be treated in the same way as marriages(see, in particular, § 50 of the decision) therefore lacks foundation.

In Austria appointments to the Constitutional Court are monopolized by the two political parties that for many decades have dominated the country’s politics: the Socialist and the (conservative) Popular Party. In particular the Socialist Party selects its appointees in function of their “political reliability” rather than their professional qualities. This, and not the content of the Federal Constitution, is what appears to dictate their agenda.

The judicial activism of the Austrian Constitutional Court (or rather, of the socialist-appointed majority of its judges) lately seems to surpass even the ECtHR’s manipulations of justice, thereby undermining the legitimacy of the human rights that both Courts pretend to protect.


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