Lithuania must issue a residence permit to a foreigner, who entered into the same-sex marriage with a citizen of Lithuania in another state, in this way partially recognizing marriages concluded by homosexual individuals abroad.
This judgement was pronounced by the Constitutional Court of the Lithuanian Republic (Constitutional Court) on the January 11, 2019 Nevertheless, what does this judgement actually mean: besides granting a residence permit in Lithuania, could it become a push for bigger changes on the matter of the same-sex marriages in Lithuania? Could this judgement be referred to as a breakthrough?
There was no revolution
Dainius Žalimas, the President of the Constitutional Court, believes that this judgement of the Constitutional Court added some clarity. According to him, the important element is that the Constitution defines family as being neutral in terms of gender. “Actually it could be a union of the same-sex individuals, especially when it was established on the grounds of a marriage concluded abroad or on the grounds of a registered partnership abroad. There is no revolution here on the European scale. There is the European concept of human rights and I do not think that the Constitution establishes anything but the European concept of human rights”, D. Žalimas commented.
According to the interlocutor, every person’s dignity must be respected and the same goes for every family’s life. “Everyone chooses the person they want to start a family with. Unlike marriage, the concept of family is neutral in terms of gender. Therefore, essentially the Constitutional Court simply clarified the Constitution. Perhaps it was not as clear to everyone before this moment”, he contemplated. When asked to comment on the judgement of the Constitutional Court, D. Žalimas could not resolve to referring to it as being revolutionary: this merely respect for human dignity.
”I would highlight once again that probably we should not be focusing on the fact that the Constitutional Court emphasized that Lithuania was a democratic state. Democracy is not just a dictatorship of the majority. This means that a democratic state is a state where the dignity of every human being is respected. Therefore, despite of mostly negative opinions, we must also tolerate families formed by the same-sex individuals”, the President of the Constitutional Court said. According to him, another important matter emphasised by the Constitutional Court both with this judgement and before it was that the Constitution protected every person and the dignity of every person.
Just a residence permit in Lithuania
Evelina Gudzinskaitė, the Director of the Migration Department, says that the clarification by the Constitutional Court in this case is applicable only to the migration procedures, the Constitutional Court said nothing about regulation of the civil relations. According to the Lithuanian Law and the Legal Status of Aliens, foreigners may come to live in Lithuania with their spouses (or registered partners) and obtain residence permits in Lithuania on these grounds. “The Constitutional Court clarified that individuals qualified as spouses (and, respectively, registered partners) in terms of the migration procedures, regardless of their sexual orientation. Thus, if the marriage (or registered partnership) of the same-sex individuals has been concluded abroad legally, such spouses (partners) are entitled to residence permits in Lithuania on the grounds of family reunification. The permit entitles a foreigner to residence in Lithuania. All other rights are granted to foreigners in Lithuania in accordance with other laws (the Civil Code, etc.)”, E. Gudzinskaitė explained.
The Migration Department does not keep statistical records on residence permits issued specifically to the same-sex spouses, however, having interviewed the staff, supposedly we may claim that approximately five temporary residence permits in Lithuania and three residence cards of a family member of a Union citizen (a total of eight cases) have been issued to the same-sex spouses (or partners) following the clarification issued by the Constitutional Court. “We have no data indicating that these foreigners misunderstood the purpose of a residence permit and the rights granted by it”, she reassured.
A signal to the legislators
Vladimir Simonko, the leader of the National LGBT rights organization LGL (LGL), believes that the judgement of the Constitutional Court could rightfully be referred to as a victory in the field of human rights defence in Lithuania. “Back in 1996 the LGL, being the national organization for the LGBT rights, set a goal to include prohibition of discrimination based on sexual orientation into the Constitution of Lithuania. With this judgement the Constitutional Court sent a strong signal to our legislators and the LGBT community. For instance, in Romania same-sex couples have been going to the court en masse for a non-existent possibility to legalize their partnership. We hope that our community would be courageous and would actively engage in demanding their rights at courts of law. These cases would carry a strategic significance”, the leader of the LGL said.
According to him, with this judgement the Constitutional Court clarified the Constitution and explicitly sated that same-sex couples were families. “It is regrettable that the legislators choose to ignore this judgement of the Court and do not present any propositions for legalization of the same-sex relationships. The only way to encourage the legislators is by going to the court and by eventually forming the jurisprudence for this. It is much likely that the situation of Estonia is repeating itself in Lithuania, that is, when a declaratory law on civil partnership was passed in 2014, however, it was not followed by any accompanying legislations”, V. Simonko commented.
According to the leader of the LGL, it is about time for some positive changes and we do not need to fear them. The LGL implements two projects supported by the European Commission focused on raising awareness of need for recognition of the same-sex couples and increasing the significance of strategic litigation. Thus, according to V. Simonko, the issue on non-recognition of the relations of the same-sex couples in Lithuania would be actively brought to attention over the next two years. “If we are to make faster changes, the community must add their civic contribution to this”, he was convinced. The motto of the “Baltic Pride” march held in Vilnius this year was “We are family”. It was supported by 10 000 marchers.
“We hope that the legislators would also rely on the clarification issued by the Constitutional Court. With this judgement the Constitutional Court also clarified that the Constitution protected against discrimination based on the gender identity. The judgement of the Constitutional Court expanded the principle of non-discrimination based on the gender identity established in Article 29 of the Constitution. Regrettably, the Office of the Equal Opportunities Ombudsperson failed to exercise the possibilities for a broader application of the Constitutional provisions granted by the judgement of the Constitutional Court while preparing amendments for the Law on Equal Opportunities of Lithuania. In light of the broader construction of Art. 29 of the Constitution reflected in the judgement of the Constitutional Court of the 11th of January, gender identity should be established in the Law on Equal Opportunities as one of the grounds prohibiting discrimination against a person”, V. Simonko noted. Skirmantas Malinauskas, the Advisor to the Prime Minister, did not support changing the concept of a family and said that the judgement of the Constitutional Court did not mean that such marriages should be recognized automatically allowing their conclusion in Lithuania as well. According to him, this was the matter to be resolved by the society and the representatives elected by it. “The aforementioned legal precedent establishes a respective practice and following such a judgement of the Constitutional Court the state authorities are obliged to recognize marriages concluded by single-sex individuals abroad. This opens legal opportunities for the citizens of Lithuania to conclude such marriages abroad, however, this does not oblige the Parliament or the Government to change the legislations, to legalize same-sex marriages in Lithuania, or to take any other legal steps mentioned in the questions asked”, S. Malinauskas said.
According to him, the Prime Minister mentioned that he supported legalization of same-sex partnerships, but he did not support changing the legal concept of a family or legalization of same sex marriages in Lithuania more than once on different occasions. The Parliament also had to consider similar matters more than once during this term and the voting results paint a clear picture of the position taken by the majority of the Members of the Parliament. Ramūnas Karbauskis, the Chairman of the ruling Lithuanian Peasant and Green Union, maintains a similar position. He told the media that he was in favour of legalization of civil relations, but he did not support same-sex marriages.
LGL notes that current dominant political powers and their proponents often use the terms “family” and “marriage” interchangeably, despite the existing legal distinction between the two categories which, in combination with the lack of prominent political leadership, further complicates legislative developments regarding recognition of family relationships in the same-sex households. Lithuania, together with Latvia, Poland, Romania, Slovakia and Bulgaria are the last EU countries with virtually no legal recognition of LGBT family rights.