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23 mar 2017


Same-sex marriage

Are the rules on same-sex marriage in contravention of the Danish Constitution?

Case no. 159/2016
Judgment delivered on 23 March 2017

John Hejlesen
Inger Kristensen
Edvind Kristensen
Mogens Skibsted
Gert Grube
Arne Heilsen
Minister for Ecclesiastical Affairs
Minister for Social Affairs and the Interior
Intervener for the Appellants:
The civic association "Med Grundlov Skal Land Bygges"

The Danish Marriage Act, which had previously only applied to marriage between two people of different sex, was amended in 2012 to also include same-sex marriage. In connection with the amendment, a Royal decree establishing the wedding ceremony for same-sex marriage was adopted.

The issue in this case was whether the amendments as regards the authority for priests in the Church of Denmark to marry two people of the same sex were invalid as a result of provisions in the Constitution, constitutional custom or the rules of the European Human Rights Convention on, among other things, freedom of religion.

The Supreme Court noted that according to the Constitution, the confessional basis of the Church of Denmark is Evangelical-Lutheran. The authority to regulate matters concerning the Church of Denmark lies with the legislative power and the government, and they have a wide discretion to decide the limits imposed by the Evangelical-Lutheran confessional basis on such regulation.

The Supreme Court found that there was no basis for setting aside the legislative power's and the government's assessment that this arrangement, which allowed two people of the same sex to be married by a priest in the Church of Denmark, was within the scope of the Evangelical-Lutheran confessional basis and thus in conformity with the Constitution.

The Supreme Court also found no legal custom limiting the legislative power's and the government's power to regulate matters pertaining to the Church of Denmark. Finally, the amendments were not in contravention of the Constitution or the European Human Rights Convention on freedom of belief and religion.

The Supreme Court thus affirmed the judgment of the High Court.