The ruling rejected an application for annulment filed by two associations and one non-profit company against a decision by the interior minister concerning the way spouses’ and parents’ details are recorded on marriage and birth certificates under Law 5089/2024.

The applicants challenged the constitutionality of the law’s provisions, which for the first time established the possibility of civil marriage between same-sex couples and, as a consequence, the right of married same-sex couples to adopt a minor child under the same provisions that apply to married heterosexual couples.

The court held that these provisions are in line with basic constitutional principles, including respect for human dignity, the free development of personality and equality before the law. It also found that they reflect changing social attitudes in Greece and across Europe in recent years.

At the same time, it ruled that civil marriage between people of the same sex does not affect the right of opposite-sex couples to marry, whether in a civil or religious ceremony, and to form a family. It also held that there is no issue of adverse discrimination against children adopted by married same-sex couples in comparison with children raised by two heterosexual parents.

Civil marriage

The court held that the institutions of marriage and family do not remain static and unchanging over time, but are subject to evolution and redefinition.

It said the constitutional protection of marriage and family does not prevent the legislature from amending the rules governing their operation, provided those changes remain within the framework of article 21(1) of the constitution and are interpreted in conjunction with other constitutional and supranational provisions and principles, in light of changing social conditions.

According to the ruling, the contested provisions of Law 5089/2024 expand the circle of people who may, if they wish, commit themselves publicly before the state to a lifelong cohabitation based on mutual devotion and loyalty, so that they may benefit from the legal recognition and protection afforded to marriage as a fundamental social institution. The court said this does not alter the basic rules governing the conclusion, operation and dissolution of marriage, nor does it negate its fundamental characteristics.

It also found that extending the right to enter into civil marriage to same-sex couples does not in any way limit or affect the right of opposite-sex couples to marry, whether civilly or religiously, and to create a family in the traditional sense, in accordance with their beliefs. Nor, it said, does it affect the rules and traditions of the Orthodox church concerning marriage and family, which remain a matter of voluntary observance for Orthodox Christians.

The court further held that the reference in article 21(1) of the constitution to the family as the foundation of the preservation and promotion of the nation cannot be interpreted as meaning that only marriage between heterosexuals and the family thereby created, with biological children, are protected institutions. It noted that procreation is not a mandatory purpose of marriage, and that children are in practice raised in a variety of family forms beyond those created through heterosexual marriage. Constitutional protection of family, motherhood and childhood, it said, extends to all forms of family life found in modern society, to every mother and to every minor child.

For that reason, the court found that the disputed provisions do not undermine the constitutional purpose of marriage and the family, nor do they conflict with article 21(1) of the constitution or article 12 of the European Convention on Human Rights, which, as interpreted by the European Court of Human Rights, neither requires nor prohibits marriage between people of the same sex.

It also held that the prior introduction of civil partnerships for same-sex couples did not prevent the legislature, acting within its broad margin of discretion, from introducing the contested provisions.

Finally, the court said that while Orthodox Christian teaching has historically contributed to the moral perceptions of Greek society, this does not negate the fact that such perceptions evolve over time under the influence of many factors. It stressed that the assessment of prevailing socio-ethical views in matters of social morality belongs to the legislature and cannot be substituted by the annulment judge.

Adoption

On adoption, the court held that recognising the right of married same-sex couples to jointly adopt a minor child, and the right of one spouse to adopt the legitimate, biological or adopted child of the other, was a natural consequence of the recognition of same-sex marriage under article 3 of Law 5089/2024.

It noted that the current adoption framework is governed by safeguards aimed at determining and protecting the best interests of the child, including an investigation by the appropriate social services in two distinct stages and a hearing before the competent court.

Given those safeguards, the court found that extending the right to adopt to married same-sex couples, under the same conditions and procedures already applicable to married heterosexual couples, does not violate the constitutional protection of childhood or the best interests of the child. Those interests, it said, are lawfully assessed in each individual adoption case by the competent authorities and the court, without prospective adoptive parents being excluded in advance because of their gender or sexual orientation.

It also noted that procedural guarantees are provided under article 11(2) of Law 5089/2024 in relation to adoptions already carried out abroad by same-sex couples.

The court added that the constitution does not require adoption to imitate a biological relationship involving a mother and a father. Adoption by a single person, whether married or unmarried, has long been permitted, and ‘the constantly evolving social reality includes various family forms, in addition to the family with two heterosexual parents’.

On that basis, it ruled that there is no issue of adverse discrimination against children adopted by married same-sex couples, provided the competent court has judged that the adoption serves the child’s interests, in comparison with children raised by two heterosexual parents. Therefore, there is no violation of the constitutional principle of equality or of the principle of protecting the best interests of the child.

The court’s conclusion

The plenary concluded that the contested provisions are not contrary to the constitution.

It held that they comply with the constitutional principles of respect for and protection of human dignity, the free development of personality and equality before the law, as well as with the principles of the European Convention on Human Rights, other international conventions and EU law.

According to the ruling, the law reflects developments over recent decades both in socio-ethical perceptions of same-sex relationships and in the treatment by legal systems of same-sex cohabitation and parenthood in the majority of advanced democratic countries in Europe and, more broadly, the western world, in the direction of removing social exclusion and protecting private and family life without discrimination based on sexual orientation.

The court said that, since this legislative choice does not exceed the limits set by higher-ranking constitutional and legal provisions, it is not subject to further review by the annulment judge.

Minority opinion

A minority of judges took a different view, arguing that article 3 of Law 5089/2024, which amended article 1350 of the civil code to allow marriage between persons of the same sex, was incompatible with the constitution.

According to the minority opinion, the concept of marriage under the constitution has a specific historical, cultural and legal content in Greece, namely marriage between heterosexuals. It also argued that stable same-sex partnerships were already adequately protected through the existing civil partnership framework, in accordance with the constitution and the European Convention on Human Rights, and that there was therefore no obligation under international law to introduce the disputed provision.

The minority further argued that, because of moral, physiological and demographic considerations, heterosexual marriage as protected by article 21(1) of the constitution does not exist under the same conditions as stable same-sex unions, and that treating the two equally could therefore raise an issue under the constitutional principle of equality.

On adoption, the minority said decisions must be based solely on the best interests of the child, and argued that the legislature had not relied on sufficiently specific and detailed long-term studies from which the long-term intellectual, psychological and social effects on children raised in same-sex families could safely be inferred.

For that reason, it concluded that recognising the possibility of adoption and, more generally, of having a common child within same-sex unions was not in harmony with the constitution, article 8 of the European Convention on Human Rights, the UN Convention on the Rights of the Child and the Hague Convention on Intercountry Adoption.

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