Austria legalizes gay marriage (effective no later than Jan. 1, 2019)

[politicallefty]

Loving v Virginia is far less of a stretch of the wording and intent of the 14th Amendment, especially given the context in which it was passed. I'd be open to be convinced that Obergefell is the necessary consequence of the Loving precedent, but I'm not entirely sure if I agree, and either way, this is about the Austrian constitution and not the US one.

It took 99 years for that ruling to come down after ratification, and even then, less than 20% of the general public supported the idea. I know this is off topic, but if the 14th Amendment was limited to just race based on original intent, I think it would say so. If Loving had gone the other way and upheld so-called state's rights, I wouldn't discount the possibility of having areas of this country where interracial marriage was still illegal (or at least not recognized).

From my point of view, the Fourteenth Amendment does not require interracial marriage, same-sex marriage, etc. What it requires is that so long as the government offers the rights and privileges of marriage, those rights and privileges cannot be denied to interracial couples, same-sex couples, etc. I reject most originalist arguments, but I do consider myself to be a textualist.

To Tender Branson, what are the provisions of the Austrian Constitution being used to support this ruling?

[politicallefty]

From what I understand, this lawsuit (by some gay couples and their children) is not about the Constitution itself, but about the Civil Code.

§44 of the Civil Code exactly, which dates back to the early 19th century and says: "a marriage shall be entered by two people of different sex".

The persons who filed the lawsuit say this paragraph discriminates against gay and lesbians and want it changed to just "two people".

The Constitutional Court, which is also responsible for the Civil Code, has found this part to be discriminating to gays/lesbians and primarily ruled in favour of the challengers. They asked the government to submit their take on this topic, but at least the SPÖ will argue in favour ... so things are looking good.

If the CC rules in favour of the challengers, the Civil Code would be updated and the current additional gay/lesbian partnership law would be scrapped - because it would be void.

I see what you're saying, but on what foundation is the Constitutional Court relying on to make that determination? What I mean is what provisions of Austrian law are being used to protect from discrimination?

To be honest, most of my understanding of law is common law, as we use in the Anglosphere. I have little understanding of civil law (as is used in the majority of countries), but I understand it to be much harder to rule in favour of particular rights than in common law countries.