Austria: Judicial miscarriage seems to legalize sodo-“marriage”. But does it really?

header_09e4166While the outcome of the recent elections clearly shows that the electorate is opposed to, or at least not interested in, the legalisation of “marriages” between sodomites, the Austrian Constitutional Court wants to legalize them nevertheless. Through a temerarious act of deliberate abuse of judicial authority – comparable to the US Supreme Court’s decision Obergefell vs. Hodges, but completely unprecedented in Europe – Austria seems set to become the first European country in which sodo-“marriage” is imposed by judicial fiat. At the same time, the so-called “registered partnerships” for homosexuals, which have been introduced in 2009, will be opened also for different-sex couples, thus creating a “second-class marriage” with similar rights but a lover level of commitment – something that the legislator never intended.

A more careful reading of the judgment, however, raises the question whether sodo-“marriage” will really become possible, even if there can be no doubt that the Constitutional Court’s intention was to introduce it. The incompetence of Austria’s supreme judges appears to be such that they have not even managed to issue a judgment that is capable of providing the outcome they want to achieve.

Article 44 of the Austrian Civil Code provides that marriage is a contract “in which two persons of different sex jointly state their will to … beget children and raise them”. As of 1 January 2019, the words “of different sex” will fall away – but the reference to “begetting children” will stay in place!!!

The will to beget children is thus an essential element of marriage, and it should be noted that the reference is not to “having” children, or to “procuring” them through any other means, but (only) to “begetting” them. Yet it is objectively and totally impossible for same-sex couples to begt children – and, given that Article 878 of the Civil Code provides that “whatever is impossible cannot be subject of a valid contract”, the only possible conclusion is that sodo-“marriages” will continue being invalid despite the Constitutional Court’s judgment.

Clearly, the constitutional judges (or the majority among them who voted in favour of this decision) must have been blinded by ideology. And at the same time, they appear to be very incompetent lawyers. As said, ther intention to legalize sodo-“marriage” is clear – but what counts is the wording of the law.

There is more. The reasoning brought forward by the Court to justify its decision to re-define marriage was that, while “civil partnerships” already provide sexually perverted couples with all the rights they could reasonably (or even unreasonably) hope for, they are still discriminated because the obligation to indicate (when filling out official form sheets or on similar occasions) their civil status as “living in a civil partnership” would “force them to disclose their sexual orientation”, which, according to the Court, is a matter entirely pertaining to the private sphere. This argument seems so ridiculously far-fetched, and so obviously in contradiction to both the nature and the purpose of both marriage and “civil partnerships”, that one has serious difficulty in accepting that it is made in good faith. The point is, however, that even if one were to accept this argument, it would not suffice to justify the (intended) outcome of the decision. Even assuming   – as the Constitutional Court does –  that  there were a pressing necessity to avoid “forcing” sodomites living in civil partnerships to disclose their sexual misorientation whenever they disclose their civil status, it would be completely sufficient – as the Court indeed has done – to open up the institution of “civil partnerships” to non-sodomites. By contrast, there is no necessity to re-define “marriage” in order to include sodomy.

In other words, even accepting the (rather scurillous) reasoning provided by the Court, that reasoning does not provide a sufficient basis for the intended judgment.

The Austrian Constitutional Court’s decision on “marriage equality” is thus a judicial farce of unprecedented dimensions. On the one hand, it fails to unequivocally achieve the intended effect, while on the other hand it suffers from an apparent lack of argument.

It remains to be seen how the newly elected government, which in its first official statement stressed the importance of “the family consisting of father, mother, and child” is going to deal with the situation.

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