Constitutional Supreme Court decides that same sex couples can not only wed but also adopt children

The application for annulment was submitted by two associations and a civil non-profit company, which challenged the constitutionality of the regulations of law 5089/2024.The Plenary held that the provisions of Law 5089/2024 are constitutional and are in accordance with the constitutional principles of respect for and protection of human dignity, free development of personality and equality before the law, as well as with the principles of the ECHR, other international conventions and EU law, and reflect the development, over the last decades, of both socio-ethical perceptions regarding same-sex relationships and the treatment, by the legal order, of same-sex cohabitation and parenthood in the majority of advanced democratic countries in Europe and, more generally, of the Western world, towards the removal of social exclusion and the protection of private and family life without discrimination on the basis of sexual orientation.The reasoning of the Council of State on same-sex couples.

The Plenary Session of the Council of State, with a lengthy reasoning, ruled:Regarding the right to enter into civil marriage by same-sex couples:“The institutions of marriage and the family do not remain static and unchanging over time, but are subject to evolution and redefinition. The constitutional enshrining of these does not, therefore, prevent the common legislator from enacting, at its discretion, amendments to the rules that regulate their general operation, and the review of the cassation judge, as a review of limits, does not extend to the correctness of the substantive assessments of the legislator's choices, provided, however, that they are within the framework set by article 21, paragraph 1, of the Constitution, interpreted in conjunction with the other constitutional and supra-legislative provisions and principles and in accordance with the spirit of evolving social conditions.The disputed regulations of Law 5089/2024 expand the circle of persons who may, if they so wish, publicly commit themselves before the State to a lifelong, in principle, cohabitation with mutual devotion and loyalty, according to the terms of the law, so that they may benefit from the special recognition and protection that the legal order reserves for married citizens and for marriage as a fundamental social institution, without otherwise modifying the rules governing the conclusion, operation and dissolution of marriage or nullifying the above basic elements thereof.

By extending, to persons of the same sex, the right to enter into civil marriage, which, as a civil law contract and a purely civil institution, is addressed to all citizens, regardless of religion and beliefs, the right of persons of different sexes to enter into marriage, civil or religious, and to create a family in the traditional sense of the term, in accordance with their beliefs, is not limited or affected in any way, nor are the rules and traditions of the Orthodox Christian Church regarding the celebration of marriage and the creation of a family, the observance of which continues to be left to the free compliance of faithful Christian Orthodox citizens, affected.

Moreover, from the reference in article 21, paragraph 1 of the Constitution to the family as the foundation of the preservation and promotion of the Nation, it cannot be concluded that only marriage between heterosexuals and the family created thereby, with the acquisition of common biological children, are conceivable as institutions protected by the State, given that procreation is not a mandatory purpose of marriage, and the acquisition and upbringing of children takes place in fact within the framework of other forms, apart from the family established by marriage between heterosexuals, and the constitutional protection of the family, motherhood and childhood concerns all forms of family life found in modern society, every mother and every minor child.

Therefore, the disputed regulation of Law 5089/2024 does not negate the constitutional purpose of marriage and the family, nor does it contradict in general article 21 par. 1 of the Constitution, nor article 12 of the ECHR, which, as interpreted by the ECHR, neither imposes nor prohibits the institution of marriage between persons of the same sex. Furthermore, the establishment of the same-sex cohabitation agreement in no way prevented the legislator, within the framework of the broad discretion it has, from introducing the disputed regulation. Finally, the given diachronic contribution of Orthodox Christian teaching to the formation of the moral perceptions of the Greek people does not negate their evolution, especially in modern times, under the complex influence of more than one"In any case, the consideration of the socio-ethical perceptions prevailing in the country, in view of the establishment of regulations relating to issues of social morality, falls within the power of the legislator, whose judgment cannot be substituted by the cassation judge exercising a limit control in this case."Regarding the right to adopt children by same-sex couples:The Plenary Session of the Council of Europe ruled that:“The recognition, in favor of same-sex married couples, of the right to jointly adopt a minor child and the right to adopt the legitimate child, biological or adopted, of one spouse by the other constitutes, according to the explanatory memorandum of Law 5089/2024, a natural consequence of the recognition, in Article 3 of Law 5089/2024, of the right to marry between persons of the same sex.

According to the current provisions, the adoption procedure is governed by a set of guarantees aimed at determining and protecting the best interests of the minor child, with the provision of (a) an investigation by an appropriate social service, in two distinct stages [check of suitability in principle and re-check with a view to submitting a request for the specific adoption] and (b) a hearing before the competent court. Given these data, the recognition of the right to adopt a minor by same-sex married couples, under the conditions and procedure that had already been established and apply to adoption by married heterosexual couples, does not violate the constitutional protection of childhood and the best/best interests of the child, which is legitimately sought and verified by the competent authorities (social services and, ultimately, the competent court) in each specific case of adoption request, without being excluded in advance due to the gender and sexual orientation of the prospective adoptive parents.

Procedural guarantees are also provided for, by the provisions of article 11 par. 2 of law 5089/2024, also with regard to adoptions that have already been carried out by same-sex couples abroad. Moreover, it is not required, even by constitutional requirement, that adoption imitate the biological relationship of the child with two heterosexual parents, so that the adoptee is raised by a mother and father, since adoption by a person, married or unmarried, has long been permissible, and the constantly evolving social reality includes various family structures, in addition to the family with two heterosexual parents.

Given these facts, there is no question of adverse discrimination against children who will be adopted by married same-sex couples - following a judgment by the competent court that the interests of the minor are served -, in relation to those raised by two heterosexual parents and a violation, for this reason, of the constitutional principle of equality and the principle of protection of the best interests of the child.In conclusion, the Council of Europe states:“The Plenary Session subsequently ruled that the disputed regulations are not contrary to the Constitution. They are in accordance with the constitutional principles of respect for and protection of human dignity, free development of personality and equality before the law, as well as with the principles of the ECHR, other international conventions and EU law, and reflect the development, over the last decades, of both socio-ethical perceptions regarding same-sex relationships, and the treatment, by the legal order, of same-sex cohabitation and parenthood in the majority of advanced democratic countries in Europe and, more generally, of the Western world, towards the removal of social exclusion and the protection of private and family life without discrimination on the basis of sexual orientation. This choice of the legislator, not exceeding the limits set by the aforementioned provisions and principles of higher formal force, is not subject to further review by the annulment judge.”