The issue of same-sex partnership came into the centre of public attention once again in the year 2008. The suggestion of Minister of Justice Rein Lang to regulate the relations of same-sex partners through a contract of partnership (in Estonian: seltsingu leping – not to be confused with civil partnership) received a mixed reaction. However, as a result the question of a partnership act was raised and the Minister promised to begin work on it in 2009. Marriage of same-sex couples is still beyond discussion – Prime Minister Andrus Ansip confirmed, that the government’s position on it has been confirmed with the new Family Law Act. According to which, a marriage can take place only between a man and a woman, and marriages between persons of the same sex are invalid.
The promise of the Minister of Justice was fulfilled in 2009 as Andra Olm’s research on non-marital cohabitation and its legal regulation was published. The research focuses on non-marital cohabitation in general, analyses related problems and various possible solutions, including the option of making a contract of partnership, as suggested by the Minister of Justice. At the moment, it is more likely that a partnership act will in fact be drawn up. However, work on an actual draft has yet to be started on.
In comparison to the average of European Union the public opinion on same-sex marriages in Estonia is conservative. If the average opinion poll in the European Union according to Eurobarometer is 44% for and 49% against, the figures in Estonia are 21% and 71% respectively. Then again, according to European Social Survey of 2008, the public opinion was divided between 18% for and 60% against. As the institutions carrying out the surveys are different, the results are not, strictly speaking, comparable. However, during the few years between the surveys, the amount of people, who have not reached a conclusion, does seem to have grown. That number has grown due to people who were previously against same-sex marriage changing their opinion. It could be said that the public opinion has become somewhat more positive.
According to the research of Ministry of Social Affairs 61,000 freely cohabitating couples were registered in the course of the year 2000 census (21.5% of all cohabitating couples). Ten of them were marked as same-sex couples. The LGBT community itself offers the estimate of 300-400 couples. All cohabitating couples (hetero- and homosexual) are plagued by the same insecurities – they lack the rights and obligations, which in Estonia usually accompany a marriage in Estonia. Whereas, if heterosexual cohabitating couples in Estonia have the option of getting married and thereby eliminating these insecurities, the same-sex couples do not have access to this option or an option that would enable a similar outcome.
Human right to marriage
The right to marriage has internationally been recognised as a human right since the passing of the Universal Declaration of Human Rights. Even though the Constitution of the Republic of Estonia does not include this as a basic right, Estonia still recognises this human right as it has signed the European Convention on Human Rights (Article 12) as well as the UN International Covenant on Civil and Political Rights (Article 23). The right to marriage is regulated in Estonia by the Family Law Act and several other regulations that stipulate the formats of documents etc. The meaning of this right, from the point of view of human rights, is constantly changing. What was meant by the drafters of the Universal Declaration of Human Rights or by the drafters of the European Convention on Human Rights is not necessarily how this right is understood now.
At least one thing, which is especially important for same-sex couples, has not changed since the drafting of the human right to marriage – the right to marriage is still reserved only for couples of opposite sex. All the core international documents word this right in a way that would allow the interpretation that same-sex couples also have the right to marriage. In spite of this the international organisations have found that at this stage the human right to marry can be relied upon only by couples of opposite sex.
However, the fact that only couples of opposite sex can marry constitutes unequal treatment. European Court of Human Rights as well as UN Human Rights Committee have confirmed that this is direct discrimination based on sexual orientation. Thus far these international institutions have accepted as justification for this unequal treatment the need to protect the concept of “traditional marriage and family”. What this concept means exactly and what (and to what extent) needs to be done to protect it, is subject to change over the course of time.
The European Court of Human rights stated in its pivotal case of Christine Goodwin that marriage is not necessarily reserved solely for couples of biologically opposite sexes. The case was about a transsexual, who applied for her right to marriage, after the operation she and her partner were of opposite sex (though conceiving in a traditional manner was impossible). Referring to Article 12 of the Convention, which guarantees the right to marriage and family, the court confirmed that the second part of the right is not necessarily dependent on the first. The couple’s inability, according to the court, to conceive or have children cannot per se be the basis for denying them the right to marry. If one were to bring this conclusion to a more general level, one might say that the concept of “a traditional marriage or family” has by now achieved a far broader application in European human rights law. The traditional premise that marriage means the ability to have children together should no longer be a deciding factor against same-sex couples’ right to marry.
Yet this was the argument that the Chancellor of Justice of Estonia relied on when asked for a statement on legalisation of family relations of same-sex couples in 2006. As expected, he came to the conclusion that even though the preclusion of marriage for same-sex couples constitutes unequal treatment, this treatment is justified. The Chancellor found that “marriage is a sustainable unit, consisting of a man and a woman, who are capable of having offspring of their own and who are therefore guarantors of sustainable society.” With that statement the Chancellor blatantly contradicted the practice of the European Court of Human Rights. Even though there is no provision, which demands the extension the right to marriage to same-sex couples, the state can no longer rely on the argument of their inability to conceive children. This would preclude marriage for a rather large number of opposite sex couples, who, for reasons not depending on themselves cannot have children or couples who do not want to have children. But the statement of the Chancellor of Justice seems to claim just that.
International law does not demand that same-sex couples be allowed to marry, nor does it rule out extending to them this institution on equal grounds with opposite sex couples. This possibility has been used by many states in the world – Belgium, Spain, the Netherlands, Canada, Republic of South Africa, Norway, Portugal, Sweden and some states in the USA (District of Columbia, Iowa, Vermont, Connecticut, Massachusetts, New Hampshire). States that have taken this road must treat hetero- and homosexual marriages in an equal manner. As they have waived the concept of “traditional marriage or family” having allowed same-sex couples to get married as such they have waived this justification and have the obligation to treat these couples equally to opposite sex marriage.
Recognition of same-sex marriage in Estonia
Estonia has made the choice of not extending the marriage institution to same-sex couples. The important question here is the status of marriages that have been concluded abroad. According to Private International Law Act, a marriage concluded in a foreign state is deemed to be valid in Estonia “if it is contracted pursuant to the procedure for contraction of marriage provided by the law of the state where marriage is contracted and the material prerequisites of the marriage are in compliance with the laws of the states of residence of both spouses”. So according to this provision a same-sex couple who have relocated to Estonia from a foreign state should retain their married status in Estonia. In the European Union, where freedom of movement is ensured in order to achieve a free common market, such a course of action is crucial.
EU Directive 2004/38, which was implemented in Estonia with Citizen of European Union Act, grants “the spouse” automatic and unconditional entry into the destination state (Art 2(2a)). A Research paper of the EU Agency for Fundamental Rights came to the conclusion (and this was confirmed by European Parliament) that according to this Directive “a spouse” is a person married to the immigrant according to the law of the state where the marriage was concluded. This may mean same-sex marriages, regardless of whether it is possible to conclude such unions in the destination state or not. The Ministry of Internal Affairs has stated it can see no reason why same-sex spouses could not be considered “spouses” within the meaning of Citizen of European Union Act. The practice of this statement has not yet accumulated.
The absence of practice causes confusion, which would need to be clarified one way or another. Freedom of movement, one of the basic freedoms of European Union, is clearly impaired if moving from one state to another means lack of legal clarity for same-sex couples. In such an instance the couple would prefer to stay in the state where their rights are recognised. This may impede commercial activities, as well as hinder Estonia’s diplomatic relations with states that have legalised same-sex marriage. This may also put Estonia in an awkward position if there are persons in the diplomatic corps who are in a same-sex marriage. Even though they should be subjected to equal treatment to that afforded to opposite sex spouses in the face of law, it is unlikely Estonia is ready to do so. This is further exemplified by the new Family Law Act, which renders marriage concluded between same sex persons void (§10 p 1).
The new Family Law Act affects mainly Estonian citizens who wish to marry a same-sex partner in a foreign state. This requires a document from the Vital Statistics Office certifying the absence of circumstances impeding marriage. This document not only states that the person is single, but it should also certify that the person does not have any other impediments by Estonian law that would prohibit the person getting married. The rationale for such document is the need to guarantee legal certainty. According to the Chancellor of Justice: “Marriage, which is valid in one legal order and not in another, makes the consequences of this legal relationship unpredictable for the people who are married, as well as for other people. This contradicts the principle of legal certainty.” As it means that the certificate will not be issued to persons wishing to marry a same-sex partner, as this would not be possible under Estonian legislation, not even if it were legal in the person’s state of residence.
The Chancellor of Justice has conceded that in practice this document may not serve the set purpose of legal certainty. The document does not state anything other than what has been communicated to the Vital Statistics Office at the time of issuing this document. For example, the person does not need to inform the Office whether the marriage was concluded in a foreign country after all. Moreover, the gender may not be clear from the name of the future spouse, and the document does not require that the sex is stated. Since the document is issued based on incomplete information, the foreign state may still conclude a marriage, which could not be concluded in Estonia under normal conditions. Therefore, the principle of legal certainty is not achieved, which effectively means that the rule at hand is deficient, does not serve its purpose and needs to be reviewed.
Rights of same-sex couples
Even though the state does not enable same-sex couples to get married, this does not necessarily mean that they do not have the right to similar rights and privileges as those which marriage would bring on. As a general rule, unmarried couples are not in a comparable situation with married couples and may therefore be treated differently, but the presumption here is that marriage is a possibility for the couple. The couples make a conscious decision to either benefit from marital rights and remissions or to forgo them. Such free choice may only be relevant to opposite sex couples, as same-sex couples have this option only in a few select states. Therefore, in order to detect unequal treatment, comparing marriages of opposite and same-sex couples does not suffice. The trend in international law is to lean towards the opinion that curtailing marital rights for same-sex couples (if they are of permanent nature) constitutes indirect discrimination, if the institute of marriage is denied them in the state. The UN Human Rights Committee has criticised the practice of states that prohibit same-sex couples from benefiting from certain marital concessions, for example a particular pension, which a spouse is eligible to.
The European Court of Justice has compared marriage and a registered same-sex partnership in its Tadao Maruko case in 2008. In that case Germany refused to pay a survivor’s pension to Tadao Maruko after his partner died, because such pension was provided only to spouses. The court found that since the state had created an institution of partnership, which was comparable to marriage in all of its major features, then it may not treat it differently from a marriage. Since Estonia is also planning on creating such an institution, this EU case should be considered in the drafting stages of this act.
At the moment, an issue of greater importance for Estonia is the comparability of marriage and cohabitation of same-sex couples. This question was deliberated on by two members of the UN Human Rights Committee in their joint opinion in 2002. Mr Lallah and Mr Scheinin generally agreed with the opinion of the Committee, which stated that according to international law the institution of marriage was still a heterosexuals’ prerogative. But Lallah and Sheinin went further into this question and analysed the rights of homosexual partners in a situation where they have not been given the right to marry. They found that in such an instance, in order to identify unequal treatment (opposite sex) married couples and not married same-sex couples can be compared. They came to the conclusion that denial of certain marital rights for same-sex couples may, in certain circumstances, constitute unjustified discrimination. A research paper conducted by EU Agency for Fundamental Rights in 2008 reached the same conclusion.
The situation in Estonia needs to be reformed in order to catch up with developments at the international level. The Ministry of Justice has confirmed that, in principle, there is no obstacle in recognising proprietary rights and obligations of couples who have come from a foreign state “stemming from a registered partnership, similarly to rights and obligations stemming from any contract.” It should be pointed out that this refers to rights/obligations in private law. Couples in non-marital cohabitation do not even have that option unless they conclude a contract to that effect. According to research conducted by the Ministry of Internal Affairs: “non-marital cohabitation is recognised by our law in the matters of family law on relatively unimportant questions”. The most important questions of family life such as property, children, alimony, issues pertaining to taxes or housing are entirely unregulated for couples in non-marital cohabitation. It is possible to regulate certain relations in civil law (for example property, housing or inheritance matters), but other questions are entirely beyond the remit of the couples themselves. This is also confirmed by the research conducted by the Ministry of Justice in 2009.
Estonia has a long way to go in terms of marriage and partnership. Although, at the moment Estonian legislation is in accordance with international law, an eye must be kept on the developments in the rest of the world. The European Court of Human Rights as well as the UN Human Rights Committee monitors the so called consensus of states in their practice. As a result of this principle, progress in other states brings about change in the interpretation of human rights. At the moment same-sex marriage is allowed in eight states and in six of the states of the USA. Even more states have taken the first step of allowing same-sex couples to register their partnership.
In many states, the road to same-sex marriage has been opened by the courts. Courts have been the ones to separate the right to marriage from the ability to conceive and to state that the ability to have children cannot be the only feature to define marital relationships. The need to protect the concept of “traditional marriage or family” has also been dismissed, because it has been found that enabling same-sex couples to get married does not in any way hinder opposite-sex couples from marrying and forming a family in the traditional sense. However, these arguments were still used by the Estonian Chancellor of Justice as the grounds for his opinion in regards to marriage of same-sex couples.
It is getting increasingly difficult for states to justify discrimination of same-sex couples in comparison to opposite sex couples. Arguments, which have been accepted thus far, are becoming less reliable. For example, the Constitutional Court of South Africa explained that the state has the obligation to promote equality on every level. Precluding the possibility of marriage to same-sex couples or giving them the option of concluding a separate registered partnership does not fulfil this obligation, but rather creates a situation where same-sex partnerships are “separate but equal” – a concept that has been categorically abolished from inter-racial relations a long time ago. Such developments in the world increase the chance that if one were to lodge a complaint with a court based on the impossibility of same-sex marriage and go through all of the instances at the national level and then lodge a complaint with the European Court of Human Rights then by the time the Court reaches a decision the situation will have changed and the Human Rights Court may very well state that the right to marry belongs to same-sex couples as well.
 Perekonnaseadus [Family Law Act] (RT [State Gazette] I, 14.12.2009, 60, 395), §1(1) and 10.
 L.Järviste, K.Kasearu, ja A.Reinomägi, Abielu ja vaba kooselu: trendid, regulatsioonid, hoiakud, Poliitikaanalüüs [Marriage and co-habitation: trends, regulations, stands, Political analyses], Proceedings of Ministry of Social Affairs no 4/2008, p 17.
 LGBT – lesbians, gays, bisexuals and transsexuals.
 Järviste et al. (reference 86), p 4.
 For example: social security and welfare services, ownership rights of residence, alimony to the partner that is on a less favourable position, assets (loans etc), questions of inheritance and questions arising with crossing borders (residence permit etc.), protection from domestic violence, partner’s rights in case of a medical emergency (hospital visits, right to decide etc.). – Järviste et al. (reference 86), p 8-9.
 Convention for the Protection of Human Rights and Fundamental Freedoms, adopted 1950, entry into force for Estonia 1996.
 International Covenant on Civil and Political Rights, adopted 1966, entry into force for Estonia 1992.
 Regulation no 159 of the Republic of Estonia in 19.08.1997 “Perekonnaseisuaktide koostamise, muutmise, parandamise, taastamise ja tühistamise ning perekonnaseisutunnistuste väljaandmise korra kinnitamine” [Drawing up, changing, amending, reinstating and nullifying of vital registration records and issuing of vitals statistics certificates] (RT I 1997, 62, 1067; RT I 2007, 67, 418); Regulation no 48 of the Minister of Internal Affairs in 07.07.2004 “Perekonnaseisuasutusele esitatavate avalduste ja nende poolt väljaantavate tõendite vormide kehtestamine” [Establishing formats of applications to the vital statistics office and to certificates issued by the office] (RT Appendix 2005, 33, 473; RT Appendix 2005, 51, 720).
 Joslin v New-Zealand, application no 902/1999, UN Human Rights Committee 17 July 2002 opinion, UN doc. no. CCPR/C/75/D/902 /1999; Christine Goodwin v United Kingdom, European Court of Human Rights 11 July 2002 decision, Reports of Judgments and Decisions 2002-VI; Karner v Austria, European Court of Human Rights 24 July 2003 decision.
 UN Human Rights Committee, X v Columbia, application no 1361/2005, Committee decision of 27 May 2007, UN doc. no CCPR/C/89/D/1361/2005; Karner case (reference 95).
 Christine Goodwin case (reference 95).
 Chancellor of Justice, Seisukoht samasooliste peresuhete seadustamise kohta [Opinion on legalization of same-sex family relations], 01.2006 no 6-1/060166/0600782.
 Whereas, the opinion of the Chancellor of Justice does not even contain a reference to the Christine Goodwin case, which is considered the most notable and pivotal in ECtHR’s practice in the last decade.
 De Schutter, Homophobia and Discrimination on Grounds of Sexual Orientation in the EU Member States, Part I – Legal Analysis, FRA 2008, p 59.
 Rahvusvahelise eraõiguse seadus [Private International Law Act] (RT I 2002, 35, 217; RT I 2004, 37, 255).
 Euroopa Liidu kodaniku seadus [Citizen of European Union Act] (RT I 2006, 26, 191; RT I 2009, 62, 405).
 European Parliament and the Council Directive 2004/38/EC, 29 April 2004, which deals with the right of citizens and their family members of European Union to move and live feely on the territories of Member States and which changes the Regulation (EMU) no 1612/68 and declares invalid the Directives 64/221/EMU, 68/360/EMU, 72/194/EMU, 73/148/EMU, 75/34/EMU, 75/35/EMU 90/364/EMU, 90/365/EMU and 93/96/EMU, Official Journal of the European Union L 158, 30.04.2004, pp 77-123.
 De Schutter (reference 98), pp 62-63; European Parliament’s Resolution of 2 April 2009 on application of Directive 2004/38/EC (which deals with the right of citizens and their family members of European Union to move and live freely on the territories of Member States), point 2.
 FRA, Thematic Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation (Estonia), February 2008, pp 14-15.
 L.Kampus, RE: Küsimus, email reply to Marianne Meiorg, 13.02.2008.
 In addition to the problem of same-sex marriage, it is probable that Estonia’s legislation does not fully comply with the requirements of EU Directive 2004/38. The Directive requires the entering into and living in a Member State of an immigrant partner in “a durable relationship, duly attested” to be “facilitated” (Art 3(2b)). For example, a registered partnership is essentially a relationship of that nature (proved by required documentation). Citizen of European Union Act] does not recognize the term “durable relationship, duly attested” and only recognizes relationships that can be classified either as marriage or household. Proof of belonging in a household requires different and much more thorough evidence. Moreover, the state has substantially wider discretion in deciding the nature of the relationship or their economic or physical dependency
 Minister of Internal Affairs 07.07.2004 Regulation no 46 “Perekonnaseisuasutusele esitatavate avalduste ja nende poolt väljaantavate tõendite vormide kehtestamine” [Establishing formats of applications to the vital statistics office and to certificates issued by the office] (RT Appendix, 98, 1559).
 Chancellor of Justice, case no 9-4/1012, Õiguskantsleri 2005. aasta tegevuse ülevaade [Overview of activities of Chancellor of Justice in 2005], 2006, p 270.
 Chancellor of Justice (reference 110), p 269; also Chancellor of Justice (reference 98), p 5.
 UN Human Rights Committee, Danning v the Netherlands, application no 180/1984, Committee decision of 9 April 1987 UN doc no CCPR/C/44/D/395/1990; European Court of Human Rights, Shackell v United Kingdom (decision of 27 April 2000).
 De Schutter (reference 101), p 56.
 UN Human Rights Committee, Young v Australia, application no 41/2000, Committee decision of 18 September 2003, UN doc. no CCPR/C/78/D/941/2000; and X v Columbia (reference 96).
 European Court of Justice, case C-267/06 (1 April 2008), Tadao Maruko v Versorgungsanstalt der deutschen Bühnen.
 Tadao Maruko case (reference 115), para 73.
 Joslin case (reference 95), paras 15-16.
 De Schutter (reference 101).
 Chancellor of Justice (reference 110), p 266.
 Järviste et al (reference 86), p 12.
 Halpern v Canada (A.G.),  O.J. No. 2714 (Ont. Div. Ct.), paras 122, 130; Minister of Home Affairs and another v Fourie and another, South African Constitutional Court, case CCT 60/04, 1 December 2005, para 86.
 Halpern case (reference 122), para 121; Fourie case (reference 119), para 111.
 Fourie case (reference 122), paras 149-150; see also Halpern case (reference 119), para 107. Constitution of Republic of Estonia confirms the same if to view §12 with §14.