INTERPRETATION OF ARTICLE 51 OF THE CONSTITUTION OF UKRAINE CONCERNING THE LEGAL SUBJECTS OF MARRIAGE
DOI:
https://doi.org/10.17721/1728-2195/2026/1.131-2Keywords:
rule of law, principle of equality, non-discrimination, interpretation, same-sex relationships, same-sex marriage, minority rightsAbstract
Background. This study is relevant because the Constitution of Ukraine is a fundamental legal act that guarantees the possibility of marriage in Article 51, and a literal interpretation of this Article leads to contradictions between its result and other provisions of the Constitution.
Methods. The study employs the method of analysis to examine the Constitution of Ukraine, the International Covenant on Economic, Social and Cultural Rights, and the case law of the Constitutional Court of Ukraine, the Supreme Court, and the European Court of Human Rights. The method of synthesis is used to analyse Article 24(2) of the Constitution of Ukraine. The method of analogy is applied to assess whether differentiation of an individual's legal status on the basis of sexual orientation is justified. In addition, generally accepted methods of legal interpretation are employed to determine the meaning and scope of Article 51 of the Constitution of Ukraine.
Results. A philological and logical interpretation of the provision under consideration suggests that marriage requires the joint free consent of one woman and one man. However, a systematic interpretation of this provision in conjunction with Articles 8, 21, and 24 of the Constitution of Ukraine, combined with the concept of law as a "living instrument" and supported by progressive historical, teleological, and axiological interpretation, leads to a different conclusion. The author argues that such an interpretation should allow same-sex persons to enter into marriage. This conclusion is based on the analogy that sexual orientation, like most of the characteristics listed in Article 24(2), constitutes an ascriptive characteristic and does not provide an objectively justified basis for differential legal regulation of family relations.
Conclusions. A philological and logical interpretation of Article 51 restricts the rights of persons of homosexual orientation. The author substantiates the need for an expanded interpretation of Article 51 in the following form by applying systemic, historical, teleological and axiological methods of interpretation: "Marriage is based on the free consent of two persons, regardless of their sexual orientation".
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