Template talk:LGBT rights table Europe

User:Chase1493, You have undone my revision once more, stating that "no sovereign state recognises them" - this is precisely why they have been added to a table for "Partially recognised or unrecognised states". These entities are de facto independent and in control of their territory. They have received recognition from South Ossetia, itself a state with limited recognition (recognised by several UN members). They have the capacity to enforce their anti-LGBT laws. Thus they should be included in the table. AusLondonder (talk) 02:28, 28 July 2015 (UTC)

Ah I see. I honestly never noticed that it also said unrecognized. You make good points, I'll change it back. Chase1493 (talk) 02:31, 28 July 2015 (UTC)

Thanks for that and thanks for being cool about it. AusLondonder (talk) 03:04, 28 July 2015 (UTC)

No problem, how long they remain rebellious against Ukraine remains to be seen. Last time I checked, they had lost ground in their own jurisdictions. I wonder if Russia will come to their aid if Ukrainian forces risk overtaking them. Chase1493 (talk) 00:52, 30 July 2015 (UTC)

I don't know where the previous editor's information that stepchild adoption is illegal in Ireland came from, but I checked on a government website (which I added as a reference) and it appears as follows: "Can I adopt my partner’s child? If you are married to your partner, and the child was born to your partner outside of a marriage then it may be possible to make an application for adoption. You make an application as a couple to adopt the child; this is usually referred to as Stepfamily adoption." Though this is technically a "joint" adoption, the result is exactly that of what is called a stepchild adoption: The pre-existing parent and their partner end up being the two legal parents of the child. Sigur (talk) 21:50, 19 March 2016 (UTC)

Sigur, I have posted an article for reference: http://www.irishtimes.com/news/ireland/irish-news/change-sought-to-anomaly-in-adoption-law-1.1848049 The article appeared as follows 'Under current legislation, if a husband wishes to adopt his wife’s child from a previous relationship, the woman must give up her legal rights and adopt her own child as part of what is known as the “step-family” process'. On top of that, I have also posted a source from ILGA, which clearly stated that only joint adoption is available but not any forms of second-parent adoption (at least for same-sex couples). Jonathankwanhc (talk) 21:00, 23 March 2016 (UTC +8)

But now the list says "Stepchild adoption is not legal for same-sex couples." That's technically true but misleading, since it implies that it is legal for opposite-sex couples, and your Irish Times article says otherwise. Surely it should say "Stepchild adoption is not legal for any couples." - htonl (talk) 13:39, 23 March 2016 (UTC)

It should say neither: Anyone who only reads the table, will almost necessarily conclude that it is not possible for a birth parent and their partner to obtain joint parental status and responsibility by way of adoption. And that is clearly the wrong conclusion, as is also confirmed by the Irish Times article. There are certainly serious flaws in the procedure, but that can't be the point. One way or the other, we need to get the information into the table that it is indeed possible for a birth parent and their partner to obtain joint parental status and responsibility by way of adoption (at least under certain conditions). If you don't want to call this "stepchild adoption" (which I still think is the most straightforward way to put it), then let's at least add something along the line of "but a birth parent and their partner may be eligible to be joint adopters of the child". I would like to point out that the most important restrictions are that the child must not be older than 7 years and that the child must not have been born into a marriage (i.e. that the original legal parents were married to each other). This means that one of the most frequent "stepchild adoption" situations, namely a lesbian couple having a child by way of sperm donation, is clearly covered by the possibility to obtain joint parental status and responsibility in this way. We definitely should not leave the table in a state that seems to imply that this is not possible. Sigur (talk) 22:28, 23 March 2016 (UTC)

Something else: I just realised that the Rainbow Europe site says that "automatic co-parent recognition" is available. Which means that you don't even need adoption in lesbian couples in case of sperm donation. I had looked for that and hadn't found the relevant legislation, but I assume ILGA doesn't say that without a reason. However, that begs the questions whether this information should not be given in the table generally. It is a possibility offered by more and more jurisdictions, at least for lesbian couples (in Europe at least Iceland, Norway, Sweden, Denmark, UK, Netherlands, Belgium and Spain). I've listed references to relevant legislations here (references 1 to 10). Adding another column might be too much, but we could mention "automatic co-parent recognition" (where applicable: "for lesbian couples") in the "Adoption by same-sex couples" column. For sure, it's not "adoption", but in order to avoid an additional column, it might be the least bad place to put it. Sigur (talk) 23:05, 23 March 2016 (UTC)

@Adrian Fey and HumRC: Discuss your edits here. EvergreenFir (talk) 22:10, 29 April 2019 (UTC)

As you can see here, HumRC constantly reverts my edits which clarify that the situation regarding the legality of same-sex marriage (At least according to constitutional language) is ambiguous and unclear amidst a recent dispute after the Warsaw Administrative Court issued a ruling in January of this year, which ruled that if specific legislation is introduced to amend the family code to recognize same-sex couples and grant the plaintiffs marriage, then Article 18 of the Constitution will not be an obstacle in any way, and thus it doesn't explicitly rule out the possibility of same-sex recognition, even if it does emphasize the right of a marriage between a man and woman, which is protected and guaranteed by the state. Howewer, HumRC insists that there is no dispute because the WSA is "an insignificant court" and thus rapidly reverts my edits with canned edit summaries, sometimes verbatim repeating what he said earlier, without providing any coherent justification or evidence as to whether there is a consensus that the Polish Constitution does ban all forms of same-sex marriage and that they "definitely and explicitly" ruled it so, hence I reverted his latest edit and issued a warning for possible vandalism, which led to this whole debate. That is my opening statement. Adrian Fey (talk) 22:44, 29 April 2019 (UTC)

There is no judicial dispute. The highest courts have no doubts about the definition of marriage included in Article 18 of the Constitution. The Constitutional Tribunal and the Supreme Administrative Court sufficiently, clearly and definitely stated that the Constitution limits marriage to opposite-sex couples. The decision of WSA regarding the meaning of Article 18 is not binding and does not undermine judicial consensus settled by the Constitutional Tribunal and the Supreme Administrative Court. WSA has no power to undermine or change the interpretation of the Constitution settled by the highest courts. No constitution in the world contains "The right to marriage shall be withheld from homosexual deviants". So according to that erroneous and ridiculous logic, no state in the world prohibits same-sex marriage.

On 11 May 2005, the Constitutional Tribunal ruled that:^[1]

The Polish Constitution specifies marriage as a union of exclusively of a woman and a man. Thus, a contrario, it does not allow same-sex relationships.

On 9 November 2010, the Constitutional Tribunal held that:^[2]

The doctrine of constitutional law also indicates that the only normative element that can be decoded from Article 18 of the Constitution is the principle of heterosexuality of marriage.

On 25 October 2016, the Supreme Administrative Court stated that:^[3]

The Act on Publicly Funded Healthcare Benefits does not explain, however, who is a spouse. But this concept is sufficiently and clearly defined in the aforementioned Article 18 of the Constitution of the Republic of Poland, which refers to marriage as a union between a woman and a man. The literature emphasizes that Article 18 of the Constitution establishes the principle of heterosexuality of marriage, [...] which prohibits lawmakers from statutory granting the status of marriage to relationships between persons of the same sex. Therefore, it is obvious that marriage in the light of the Constitution, and hence, in the light of Polish law, can only be, and is only a heterosexual union, and thus same-sex individuals cannot be spouses in a marriage.

On 28 February 2018, the Supreme Administrative Court ruled that:^[4]

Article 18 of the Constitution of the Republic of Poland, which defines marriage as a union of a man and a woman, [...] requires to treat only a heterosexual union as a marriage in Poland.

HumRC (talk) 23:06, 3 May 2019 (UTC)

What I read here about Poland reminds me of Germany before 2001: The constitution simply stated (and still states) that marriage is under the special protection of the state, and the Constitutional Court had repeatedly mentioned that "marriage" as understood by the constitution is between a man and a woman. At that point, there even was a clear scholarly majority saying that this "special protection" ruled out civil unions. Then we had civil unions, and they were validated by the Constitutional Court. Over time, these civil unions became more and more marriage-like (sometimes even due to a decision by the Constitutional Court itself) and outside administrative contexts most people just called them "marriage". Finally, we now have same-sex marriage, and there is little doubt that if anyone tried to invalidate that on grounds of constitutionality, the Constitutional Court would turn them down. This was a gradual process over twenty years, of course, and if you time-warp back to, say, 1995, it would have been proper to say that the constitution prohibits same-sex marriage. Because for all practical purposes it did. Today, with the same text, it does not. Therefore, I think that writing something along the lines of "The Constitution is generally said by case law and scholars to prohibit same-sex marriage" would be adequate. And I would then still mention the Warsaw Administrative Court decision in one of the footnotes. On a side note, HumRC, some constitutions explicitly define and limit marriage as between a man and a woman; therefore it is far from erroneous and ridiculous to say that only those actually "ban" same-sex marriage, because case law can and does evolve (And as I can see the question coming: It is easy to see how case law would get around Article 18 in twenty years' time: That provision only defines the word marriage in order to say to whom the "special protection and care of the Republic of Poland" applies; it does not prohibit legislation from giving the same protection to others and use the same label on the ordinary law level. The day you want it because the general consensus has evolved to be in favour of it, it's simple to do). Sigur (talk) 08:36, 4 May 2019 (UTC)

Or maybe, even if it gets a bit long for a table, we should quote the constitution: "The constitution refers to marriage as 'being a union of a man and a woman', and that is generally said by case law and scholars to prohibit same-sex marriage." Sigur (talk) 09:01, 4 May 2019 (UTC)

The Polish Constitution explicitly defines and limits the institution of marriage to opposite-sex couples, the German Constitution does not. This is a fundamental difference. The purpose of the introduction of Article 18 was to prohibit lawmakers from statutory establishing marriage for same-sex couples. Law books or journals clearly state that the Polish Constitution bans same-sex marriage.^[5][6][7][8] Only a tiny number of scholars question that. The justification of the Warsaw Administrative Court ruling concerning the meaning of Article 18 is not binding. The sentence is binding only on the parties in the proceedings.^[9] HumRC (talk) 19:11, 5 May 2019 (UTC)

There are two reasonings about why same-sex marriage is (now) constitutional in Germany: (1) The societal concept of marriage has evolved and there is no definition of marriage in the constitution; therefore the meaning of the word "marriage" in the constitution can actually change without a formal change of the text. (2) While the constitution only gives special protection to opposite-sex unions and only calls those marriage, there is nothing to prohibit the legislator to give equal protection to same-sex unions as well and call them by the same label on the ordinary-law level. Now, reasoning (1) is ruled out by the text of the Polish constitution, but there is nothing to stop any court from using reasoning (2). Granted, it seems obvious that this would run counter to the intention behind the provision, but that wouldn't be the first time. So, I think the fairest way to put that in a relatively short way into a table is to quote the actual text (which is impressive enough), but to only talk about a prohibition "generally" understood to flow from there. You admit yourself that "a tiny number of scholars" question the majority view; this makes "generally" an adequate way to convey the right message. (But you will have to fight that out with Adrian Fey. I'm not going to change anything; I'm just trying to give some inspiration.) Sigur (talk) 21:07, 5 May 2019 (UTC)

Adrian Fey has been blocked permanently for disruptive editing. HumRC (talk) 14:27, 6 May 2019 (UTC)