Spanish Same-Sex Marriage Legalization: Constitutional Court Ruling

Same-Sex Marriage in Spain

Context

On June 30, 2005, the Spanish Parliament legalized same-sex marriage.

Mr. Astarloa, empowered by seventy-one Members of the People’s Party Parliamentary Group in Congress, appealed for the unconstitutionality of Law 13/2005, which amended the Civil Code regarding the right to marry.

Summary of the Appeal

The petitioners did not oppose same-sex marriage itself but challenged the legalization process. They alleged the violation of Articles 9.3, 10.2, 14, 32, 39.1, 39.2, 39.4, 53.1, and 167 of the Spanish Constitution (SC).

They argued that the challenged law contradicted Article 32, which they interpreted as defining marriage exclusively as a heterosexual institution.

Furthermore, they contended that Article 14 SC, which regulates the principle of non-discrimination, was ignored, as marriage and same-sex couples are distinct realities requiring different treatment.

Regarding Article 39 SC, concerning the protection of family and children, the applicants argued that allowing same-sex spouses to jointly adopt children violated this article.

Court Analysis and Ruling

The Constitutional Court found that Article 9.3 SC had not been infringed.

Regarding Article 14, the Court stated it does not enshrine a right to non-distinction between different situations; therefore, there is no subjective right to unequal regulatory treatment.

Concerning Article 39 SC, the Court noted that if the adopting parent dies or is subject to exclusion under Article 179, the adoptee may be readopted.

The Court interpreted Article 32 SC as manifesting the founders' wish to secure the equality of men and women, without implicitly excluding or accepting same-sex marriage based on a literal or systematic interpretation.

Ultimately, the Court dismissed the action of unconstitutionality brought against Law 13/2005.