(Aug. 26, 2019) On June 21, 2019, the Federal Assembly—the Swiss parliament—concluded the consultation process on the parliamentary “Marriage for All” initiative, through which interested parties, in accordance with the Federal Act on the Consultation Procedure and the Decree on the Consultation Procedure, were able to voice their opinion on the Draft Revision of the Swiss Civil Code. The Draft Revision, whose development was prompted by a member of the Green Liberal Party in December 2013, proposes changes to Swiss family law to allow same-sex couples to marry and adopt children, and to facilitate the naturalization of married same-sex partners. The process found that most interested parties reacted positively to the proposal. The only political party that opposes it is the Swiss People’s Party (Schweizerische Volkspartei, SVP), which does not support elevating same-sex unions to the same standing as marriages and does not want to open up adoption to same-sex couples.
Article 14 of the Swiss Constitution protects the right to marry. However, the prevailing legal opinion is that the constitutional article should be interpreted as guaranteeing marriage only between a man and a woman (Fed. Gazette 01 (1997) at 154–55). In 2002, the Federal Council—the Swiss executive—believing that changing the definition of marriage would not be politically feasible, proposed civil unions for same-sex couples. The civil unions were devised to be distinct from matrimony in that they do not allow for adoption or access to reproductive medicine, for example (Fed. Gazette 07 (2003) at 1319–24). On June 18, 2004, the Swiss people accepted the Swiss Federal Council’s proposal 58% to 42%, and since January 1, 2007, same-sex couples have been able to register their union at a civil registry office in Switzerland under the Federal Act on Civil Unions for Same-Sex Couples. According to the Swiss Federal Statistical Office, 14,000 persons were living in a civil union in 2018.
Since the introduction of civil unions, Swiss society has further changed its attitude toward same-sex couples and, as a reflection of this social change, the parliament in 2016 passed changes to family law that allow partners in same-sex unions to adopt their stepchildren (Fed. Gazette 03 (2015) at 890). This change in law acknowledges that children are already living with same-sex couples and should not be discriminated against or be less protected because of their parents’ sexual orientation (Fed. Gazette 03 (2015) at 909–10). However, same-sex couples still feel discriminated against because the civil union status is perceived as stigmatizing. At the same time, several European countries have adopted provisions to allow same-sex marriage, most recently in neighboring Germany and Austria, putting pressure on Swiss lawmakers to act.
Disagreement About What Approach to Take
The Federal Act on Civil Unions did not fully equalize the status of registered same-sex couples and married heterosexual couples, and the opening up of matrimony to same-sex couples would automatically end some of the differences in treatment. The same regulations concerning the facilitated process of naturalization for married partners and for adopting children without family ties would be applicable to married couples regardless of their sexual orientation. However, without a constitutional amendment, same-sex couples would remain discriminated against with regard to access to reproductive medicine, as the current precondition for access is infertility, which has been interpreted as being applicable only to heterosexual couples.
The Legal Affairs Committee of the parliament’s lower chamber—the National Council—determined that speed is of the essence in making same-sex marriages available and therefore decided that statutory changes and incremental equalization of same-sex couples with heterosexual couples were preferable to adapting all the pertinent laws in one step, which would have required a constitutional amendment. A constitutional amendment would necessitate a referendum in which the proposal was approved by a majority of the popular vote and a majority of the cantons (Swiss Const. art. 139), and the Committee does not want to risk the failure of the proposal by including politically controversial issues. Thus, the Legal Affairs Committee introduced two narrow proposals into the consultation process. One proposal made only the necessary statutory changes to allow same-sex couples to marry, whereas the other proposal additionally included limited changes to reproductive regulations, allowing lesbian couples to make use of artificial insemination. The second proposal narrowly failed to gain a majority in the Committee. Neither proposal requires a mandatory referendum, but an optional referendum could be held if 50,000 signatures were collected within a 100 days of the official publication of the new provisions (Swiss Const. art. 141).
If one of the proposals passes, no new civil unions could be formed, currently existing civil unions would be kept or transformed into a marriage, and the Federal Act on Civil Unions for Same-Sex Couples would remain in place as a transitional arrangement as long as there are civil unions in Switzerland.
The National Council will first debate and vote on the proposal, followed by the Council of States—the parliament’s upper chamber. The parliament needs to finish its deliberations and draft legislation by 2021. However, due to the Swiss Supreme Court’s ruling that the vote on the initiative put forward by the Christian Democratic People’s Party (Christlichdemokratische Volkspartei der Schweiz, CVP) abolishing the marriage tax penalty was invalid and needs to be repeated, the Swiss population may get to vote on the definition of marriage before the parliament decides on the “marriage for all” proposal. The CVP has until May 27, 2020, to retract its initiative. The Swiss parliament is currently trying to agree on a counterproposal to make a second vote on the initiative unnecessary. Several members of the CVP themselves do not support the initiative’s definition of marriage as being between man and woman and have no interest in letting the public vote on the proposal a second time. Furthermore, it is likely that the Swiss public would reject such a definition as polls show consistent support for the opening up of the definition of marriage.
Prepared by Anne-Cathérine Stolz, Law Library intern, under the supervision of Jenny Gesley, Foreign Law Specialist.