Introduction

Marriage has developed and changed throughout history, from the part of customs and tradition to the social institution regulated by law, with the aim of regulating the relationship between two persons (speaking of monogamous marriage) or several persons (in the event of polygamous marriage) for joint life and upbringing of children (Čović, 2020, p. 13). Marriage conclusion may affect property rights and obligations, but also various tax reliefs, social assistance, acquiring the right to residence in a country, so it can be said that the reasons for marriage conclusion are various – legal, social, emotional, financial or religious, and sometimes the choice of the parents, which also refers to prescribed marital rules, including the ones stipulating the sex of future marital partners as a condition for valid marriage conclusion (Čović, 2020, p. 13). Today in the legal regulations in many countries are changed for the purpose of legal recognition of the conclusion and legal consequences of same-sex unions, but also of same-sex marriage and the adoption of children by these couples.

The European Convention on Human Rights and Fundamental Freedoms1 guarantees the protection of private and family life (Article 8), which is a broader concept than the concept of marriage and includes the relationships of extramarital partners and their children, the relationships of same-sex couples and transsexual relationships. Moreover, although Article 12 guarantees the protection of the right to marry and to found a family to men and women of marriageable age, in its decisions the European Court for Human Rights has taken the position that the protection does refer only to the traditional family.

The right to free decision-making about entering or dissolving a marriage, based on the free consent of a man and a woman before the relevant state body, is guaranteed by Article 62 of the Constitution of the Republic of Serbia2, while the Family Law stipulates that marriage is entered before the registrar3. The Law on the Prohibition of Discrimination4 prohibits discrimination based on sex, gender and sexual orientation and defines it as serious forms of discrimination, while in international law, an important document in this field is the Resolution of the European Parliament. It prohibits discrimination based on sexual orientation (Article 6) and invites the member states to guarantee single-parent families, common-law couples and same-sex couples the same rights that are enjoyed by traditional couples (Articles 56 and 57), as well as to submit amendments to the applicable laws for the purpose of the registration of same-sex couples.5 The Charter of Fundamental Rights of the European Union from 2007 guarantees the protection of private and family life (Article 7), as well as the right to marry and to found a family (Article 9), while prohibiting discrimination based on sexual orientation (Article 21).6

In the USA, all anti-homosexual laws were abolished at the federal level by the decision of the Supreme Court (Lawrence v. Texas, 539 US 558 [2003]). Nevertheless, there is no single law in this field.

The Draft Law on Same-Sex Unions, which has been announced for many years in our country, defines a registered same-sex union as "a union of family life of two same-sex persons which was entered before the relevant state body in compliance with the provisions of this Law".7 The same Article states that an unregistered same-sex union is the union of family life of two same-sex persons who did not enter the same-sex union before the relevant state body, but between whom there are no obstacles to entering the same-sex union as stipulated by the Law. By further reading of the Draft Law, it can be seen that after stipulating the conditions and the procedure of entering and registering a union, i.e. its dissolution, the legal consequences produced by the same-sex union are specified. The rights and obligations of the partners in the same-sex union are determined during criminal proceedings, in the event of the deprivation of liberty, in the event of illness and during hospital treatment, and within the personal rights of the partners – consensual choice of the surname, financial support of the partner and the partner's child in the same-sex union, decision-making about the child in an emergency, and the child's right to maintaining personal relationships. The Draft Law also regulates property relations between the partners, matters regarding pension, taxes and the rights in relation to social and children protection, as well as the right to indemnification. The text does not use the word "marriage" anywhere nor does it stipulate the possibility of adopting children, either jointly or by one partner.

Bearing in mind that our country's case law in the field of the protection of rights of LGBT persons is not as rich as case law in some other countries or it may be even described as rather scarce, since we are one step from the adoption of the Law on Same-Sex Unions, I believe that some examples from the comparative legal case law may be of use and give us a more precise picture of potential procedures that will no doubt take place before our courts too in the oncoming years. Furthermore, by reviewing important rulings in this field, it may also be seen in what manner and direction case law has influenced the amendments to the applicable legal regulations regarding LGBT population.

Case law

Freedom of speech (One, Inc. v. Olesen (1958))8

In the first ruling of the Supreme Court regarding homosexuality, the US Supreme Court reversed the ruling of the lower-instance Ninth Circuit Court of Appeals and thus confirmed the constitutionally guaranteed right of freedom of speech, which in this case referred to homosexuality. This case was initiated when the 1954 issue of One magazine was declared inappropriate for publication in Los Angeles because of the content promoting homosexual experiences. The Postmaster ordered the Post Office officials to confiscate the contentious issue of the magazine. Although the Circuit Court believed that the content of the magazine was obscene and could be called cheap pornography, as well as that homosexuality could be spoken about only from the scientific and critical perspective, the Supreme Court reversed the ruling in favour of the publisher that cited the violation of the First Amendment (freedom of speech and association) and the Fourteenth Amendment of the Constitution (sexual discrimination against the provision on equal protection).

Permissibility of same-sex marriage (Baker v. Nelson (1972))9

The US Supreme Court considered the matter of the equality of marriages for the first time in 1972, when a couple from Minneapolis wanted to get married, but was not permitted because they were of the same sex. Baker, a law student at the time, discovered that the laws of Minnesota did not mention the sex of future spouses nor did they specifically prohibit same-sex marriage. After the first-instance Circuit Court refuted their request, the Supreme Court of Minnesota decided that the law on marriage depriving same-sex couples of the possibility to enter marriage was not discriminatory, since family planning and children upbringing were in the essence of the constitutional protection of marriage. The couple thought that, apart from the First and Fourteen Amendments, as in the case One, Inc. v. Olesen, the Eighth Amendment (cruel and unusual punishment) and the Ninth Amendment (right to privacy) were also violated. John Baker filed a complaint against the ruling and the US Supreme Court refused the complaint "due to the lack of a substantive federal matter". In the meantime, this couple got married in another district of Minnesota after Baker had changed his name into a gender-neutral name. Minnesota legalized same-sex marriage on 26^th June 2015.

Anti-discrimination legislation (Romer v. Evans (1996))10

After some cities in Colorado had adopted legal acts and bylaws which, apart from prohibiting discrimination based on religious, race and sex, also stipulated the prohibition of discrimination based on sexual orientation, the Second Amendment to the Colorado Constitution was adopted, prohibiting the legislative, executive and judicial power of the cities and districts to enact any regulations and decisions against discrimination based on sexual orientation. Therefore, all anti-discrimination laws related to sexual orientation were abolished. The US Supreme Court voted with six votes in favour and three votes against that the contentions Amendment of the Colorado Constitution had violated the clause about equal protection from the Fourteenth Amendment due to the manner in which particular group was singled out. The majority opinion states that "even if, as the government claims, homosexuals can find protection in the general-application laws and policies, in this case they are discriminated by prohibiting them to seek specific legal protection". Therefore, it was concluded that in this case the right to equal protection had been violated and that the intention of depriving a particular group of the right out of "general feeling of animosity could never be considered a legitimate state interest". The judges who voted against thought that the amendment was "a rather modest attempt" of preserving traditional sexual customs, against the efforts of the politically powerful minority to revise those laws.

Right to freedom of association (Boy Scouts of America v. Dale (2000))11

In the case Boy Scouts of America v. Dale, the Supreme Court considered whether a private organization could single out LGBT persons by establishing certain rules; in this case, the ruling was made in favour of the organization. The cause for initiating the proceedings was the 1990 decision of American scouts to exclude assistant Scoutmaster Dale from the organization, after he was identified in the press as the leader of the Lesbian/Gay student alliance at Rutgers University. The Supreme Court in New Jersey initially ruled that the scouts had violated the state law on the prohibition of discrimination, but that decision was annulled by the decision of the Supreme Court, with five votes in favour and four votes against. The Court established that forcing the scouts to readmit the excluded member would violate their First Amendment right to freedom of association. The scouts kept pointing out that homosexual behaviour was opposite to the values contained in the Scout Oath and Law, particularly those represented by expressions "morally straight" and "clean", and that the organization did not want to promote homosexual behaviour as a legitimate form of behaviour.

Right to privacy and personal autonomy (Lawrence v. Texas (2003))12

In the case Lawrence v. Texas, the US Supreme Court ruled that the laws prescribing the sanctioning of homosexual relationships were unconstitutional. The Court cited the right to privacy and personal autonomy, emphasizing that the clause on the prescribed procedure from the Fourteenth Amendment gave the applicants

"full right to behave privately without the state intervention, that the Statute of Texas State did not support a legitimate state interest that could justify its intervention in the individual's personal and private interest and his private life, therefore public ideas on morality could not justify the violation of the people's constitutional rights".

The cause for initiating the proceedings was the claim for the violation according to the Texas anti-sodomy law, when Lawrence and Garner were caught during sexualn intercourse. This is a landmark decision because it abolished, apart from the contentious Texas law, the laws on sodomy in another thirteen states, which made same-sex sexual intercourse legitimate in all US states.

Judge Antonin Scalia justified his decision to dissent by pointing out that the

"opinion is the product of a Court, which is the product of a law-profession culture that has largely signed on to the so-called homosexual agenda… The Court has taken sides in the culture war, departing from its role of assuring, as a neutral observer, that the democratic rules of engagement are observed".

Professor Antonić explains that there is a belief about the gay agenda implying "a psychological mechanism of numbing the audience" (Kirk and Madsen 1989, quoted according to: Antonić, 2014, p. 66). It is followed by the stage of "disturbing", i.e. preventing the opponents of the movement, who are most frequently described as religious fanatics, to access the media, and then, in the third stage of "reversing", negative associations cease to exist in relation to the gay issue and they are replaced by other positive associations. In the end, there is a broad public relations campaign (Antonić, 2014, p. 67, p. 68, p. 71). However, he thinks that, regardless of the impact it had, the book written by Kirk and Madsen or any other writing cannot be considered a secret agenda of "a diffuse and branched movement such as gay movement in the USA" (Antonić, 2014, p. 75).

Equality of marriages and tax law (United States v. Windsor (2013))13

In this case, as one of the landmarks on the road towards equality of marriages, the US Supreme Court decided to annul part of the Defense of Marriage Act from 1996, which defined marriage as a "legal union between one man and one woman as husband and wife". The case considered the situation of two female partners who got married in Canada before moving to New York, the state that recognized their marriage. After her partner's death, Windsor sought to claim the federal estate tax exemption for surviving spouses regarding the estate she inherited by the will of the deceased partner. However, her attempt failed because of the provisions of the Federal Defense of Marriage Act. With five votes in favour and four votes against, the Supreme Court ruled that the contentious Act violated the due process and the principles of equal protection.

"The principal effect of this Act is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency", Judge Kennedy emphasized in the opinion. It was concluded that Chapter 3 of the Defense of Marriage Act, which refuted federal recognition of same-sex marriage, was the violation of the clause on the legal proceedings from the Fifth Amendment, and that the federal government could not discriminate married same-sex couples in the process of determining federal fees and protection.

Equality of marriages and social justice (Obergefell v. Hodges (2015))14

This ruling made it mandatory for all federal states to recognize same-sex marriage under the same conditions as marriage entered by persons of opposite sex, as well as all the rights and obligations deriving from it. In the case Obergefell v. Hodges, a group of fourteen same-sex couples and two men whose partners had died filed an application, claiming that state officials had violated the clause on equal protection from the Fourteenth Amendment, forbidding them to get married or not recognizing marriages entered in other federal states. The US Supreme Court ruled in their favour with five votes for and for votes against, stating that it was "humiliating acting towards same-sex couples that can also aspire towards transcendent marriage purposes" and continued the benefits guaranteed to married opposite-sex couples, which primarily referred to social insurance, healthcare and the benefits of surviving spouses and/or out-of-marriage partners. The Court emphasized the following:

"Marriage is a keystone of our social order and there is no difference between sameand opposite-sex couples with respect to this principle, while, consequently, preventing samesex couples from marrying puts them at odds with society, denies them countless benefits of marriage, and introduces instability into their relationships for no justifiable reason".

In a separate dissenting opinion, Judge John Roberts wrote that same-sex marriage bans did not violate the Due Process Clause, the right to privacy, or the clause on equal protection because they were related to a state interest – preserving the traditional definition of marriage. Moreover, he thinks that the "universal definition of marriage" as "the union of a man and a woman" arose to ensure successful childrearing. Roberts criticized the majority opinion for relying on moral convictions rather than a constitutional basis, and for expanding fundamental rights without caution or regard for history and for using the judiciary in a way that was not originally intended. He also warned that the majority opinion would ultimately lead to consequences for religious liberty, and he found that the Court's language unfairly attacked opponents of same-sex marriage.

Freedom of religion (Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission)15

In this ruling, the Supreme Court established that the baker was not obliged to make wedding cakes for same-sex couples. Phillips refused on religious grounds to make a wedding cake for the homosexual couple, claiming that cake-making for him was an artistry for the glory of his God, so that forcing him to make a cake in this specific case would violate his freedom of speech and his right to profess his religion as guaranteed by the First Amendment. The couple filed a claim to the Colorado Civil Rights Commission, citing the Anti-Discrimination Law of Colorado. The Colorado Court of Appeals took the side of the couple, but the argument of the Supreme Court in favour of Phillips was "an impermissible hostility toward his sincere religious beliefs". The Court concluded that "the government cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices", and that is why the law of Colorado that prohibited discrimination of homosexuals on the occasion of purchasing products and services in this case had to be applied neutrally regarding religion.

Violation of the right to religion (Ladele v. Islington LBC, McFarlane v. Relate Avon Ltd)

In the case Ladele v. Islington LBC, a registrar in a local self-government service, the London Borough of Islington, believed that marriage was a union exclusively between a woman and a man, in line with the Christian teaching.16 She found same-sex partnerships contrary to God's law and after the adoption of the Civil Partnership Act that came into force in the United Kingdom in 2005 and its application in the Borough of Islington, on numerous occasions she refused to perform her registrar duties and to officiate at the ceremonies of registering same-sex unions. Her colleagues complained about her discriminatory behaviour and disciplinary proceedings were initiated against her, with the potential risk of her losing the job due to the disrespect for her work duties. In her application to the Employment Tribunal, she complained of direct and indirect discrimination and harassment on grounds of religion, but since her positions were not accepted, the ruling was that there had been no violation of her right to religion. Her appeal to the Court of Appeals was also refused because the Court held that "she was being required to perform a purely secular task, so her religious view of marriage did not release her from her duty of officiate at the ceremonies of registering same-sex unions" (Nikolić, 2015, pp. 78–79).

A similar case is McFarlane v. Relate Avon Ltd. The former archbishop of a Bristol church believed that homosexual relationships were sinful from the Bible point of view and therefore they should not be supported.17 Between 2003 and 2008, as a psychotherapist in a private charity providing relationship support regarding sexual and emotional partnerships, McFarlane worked with LGBT persons, but soon began to avoid such cases based on his religious beliefs. After disciplinary proceedings were initiated against him and his dismissal from his job, the Employment Tribunal ruled that there had been no discrimination or dismissal due to McFarlane's religious beliefs, but that the cause was "failure to observe the employment rules of the organization he worked for". The Court of Appeal also refused his appeal, citing the ruling Ladele v. Islington LBC (Nikolić, 2015, p. 79).

Same-sex parenthood (Frette v. France, E. B. v. France, Gas and Dubois v. France)

Acting upon the application of Frette v. France, after Frette's request for child adoption was declined because of his sexual orientation, the European Court for Human Rights, concluded that the member-states of the Council of Europe had no common attitude about this matter. Therefore, the ruling of the French court was pursuant to Article 21 of the Convention on the Rights of the Child and the obligation of the member-states to make the adoption in line with the best interests of the child, with the consent of the relevant authorities, with the protection measures for the child and the conditions and proceedings determined by the states in their national legislation.18

However, in the case E. B. v. France, the European Court for Human Rights took the position that the French authorities, by depriving homosexuals, bisexuals and lesbians of the right to adopt children, implemented discriminatory practice towards individuals, thus violating Article 8 and Article 14 of the European Convention on Human Rights and Fundamental Freedoms, as well as the French law stipulating that, apart from couples, individuals could also apply for the adoption of children.19

The case Gas and Dubois v. France is considered one of the greatest defeats of the gay lobby. After a lesbian woman's request was refused to adopt the child her partner had got through artificial insemination, the European Court took the position that Article 12 of the Convention (right to marriage and family) did not obligate the states to legalize samesex marriage, while in the event of the existence of the law on registered partnership, the states had a discretionary right to decide what rights to recognize to same-sex partners. Discrimination based on sexual orientation was also refuted due to the fact that common-law heterosexual couples are not allowed to adopt children in France.20 A year later, the 2013-404 Law granted permission of joint performance of parental authority to samesex couples who are officially married, if the child was adopted by one of the spouses (LOI n° 2013-404 du 17 mai 2013 ouvrant le mariage aux couples de personnes de même sexe).

Final considerations

Speaking of the evolution of legislation in the area of the protection of LGBT population rights, it can be seen that it occurred gradually, from common-law cohabitation, registered partnerships to the equalization of homosexual and heterosexual marriages and enabling same-sex couples to enjoy parental rights in the same manner as heterosexual couples. All matters in relation to family and legal relations, primarily the permission to enter marriage, to adopt children, either jointly or by one partner (when the adoptee is the child of the other spouse), promotion and encouragement of artificial insemination in planned lesbian families, even of surrogate motherhood in the situation where two men would like to become parents, are, as a rule, the most sensitive fields, and their regulation should be approached most often after a certain period of time from the recognition and regulation of the matters regarding property rights, rights from the field of social and children protection, as well as regarding pension and taxes. Although the proposed Draft Law on Same-Sex Unions is not a law on marriage and family, I think that the opponents of its adoption are not wrong to conclude or anticipate that it is an introduction into full equalization of homosexual and heterosexual couples in the field of marital and parental law, which can be easily concluded by watching the developmental road of legal regulations in other countries. The influence of case law on that road is no doubt exceptionally important because case law, with its authority, on a year-to-year basis, paved the way for expanding the scope of legal protection for LGBT persons. Another question is to what extent the courts are autonomous in their work and free from the influence of other representatives of authorities and various interest groups. As far as the family is concerned, Professor Šuvaković concludes that party program attitudes in Serbia range from conservative (the Party of Democratic Action of Sandžak) to postmodern (the Socialist Party of Serbia), stating that most parties see the family as a union of a man, a woman and their children, while only the Socialist Party of Serbia "mentions the affirmation of the LGBT population rights, from which the rights in the domain of family policy consequently derive", and a question arises whether "the attitudes about the family from the 2010 Program are revised" in this manner (Šuvaković, 2020, p. 50, p. 55). The party programs and the policies they implement in reality are often divergent because the policy of a party and its ideas are adjusted quickly and on the go to the requirements and standards of the world's policy that is becoming increasingly visible, and acting loudly and with no former concealment, in all segments of our lives, which has also proved true during the ongoing pandemic. Serbia is a relatively conservative environment in which the Serbian Orthodox Church also has a significant influence on the creation of the public opinion. The Orthodox Church has a conservative attitude to homosexuality, particularly in East Europe and Greece. Therefore it cannot be expected that full equalization of homosexual and heterosexual couples in all fields will occur soon or overnight, although it seems to me that we are going in that direction.

As it can be seen from the description of some cases from case law, the proceedings regarding the protection of the right to freedom of religion, which are related to LGBT rights, are frequent, which is not surprising since the majority of religious communities do not look favourably at the legal changes in this field. It is interesting to hear the statement of Roman Catholic Cardinal Reinhard Marx, the Chairman of the German Bishops' Conference, who says that

“so far we have had that difference – some are against, some are in favour, and it was an open debate… We (the church) have our moral attitude about marriage and it is clear, but the secular state must regulate same-sex partnerships and place them into a fair position, while we, as the church, cannot be against it... I believe that the church can be the main public voice in the development of pluralist societies” (Mac Donald, 2016; quoted according to: Čović, 2020, p. 177).

From the interpretation of Quranic verses and hadiths, we can see that they condemn homosexuality (together with the majority of forms of extramarital relationships in Islam), but transgender persons are often accepted if they observe traditional gender norms after transition. Therefore, the government of Iran not only allows and recognizes the sex-change operation, but it also subsidizes that procedure. It should be noted that most countries with the majority Muslim population, as well as the Organization of Islamic Cooperation (OIC) objected to the improvement of LGBT rights in the United Nations, the General Assembly or UNHCR, whereas Albania and Sierra Leone signed the UN Declaration that supports LGBT rights (LGBT laws on the prohibition of discrimination were enacted in Albania and Northern Cyprus) (Čović, 2020, p. 178, p. 179).

A number of authors state that the research conducted so far does not show that children's growing in same-sex family affects their mental development, that the division of roles based on sex is smaller than before, as well as that officially married couples more often have the role of parents as compared to common-law couples (Bianchi, Milkie, Lamb, quoted according to: Čović, 2015, p. 401, p. 402, p. 405). On the other hand, it is stated that childbirth is the basic function of entering marriage and founding the family, and there is doubt about the possibility of children's successful socialization in a homosexual marriage and/or the union where the parents are not of opposite sexes (Šuvaković, 2013, p. 166, p. 168; Antonić, 2014, p. 96).

Professor Antonić states that cohabitation or a partnership household provide certain social protection and security, because the society "has an interest in supporting every type of stable, monogamous love (sexual) relationships and in normalizing the way of life of LGBT persons" (Antonić, 2014, p. 208). In this manner, it would also be possible to provide "proportional recognition and social affirmation to lesbian-gay couples without jeopardizing such an important institution as marriage" (Antonić, 2014, p. 208).

Furthermore, he distinguishes the repressive attitude (traditionalist model) in the situation when there is public and private condemnation, or even persecution and different violations of their human rights; the tolerant attitude (liberal model), when homosexuality is not legally sanctioned, but everyone is free to value the morality of homosexual relationships and not to support them (for example, for religious reasons), or to be indifferent about that issue; the attitude of forced affirmation (progressive model) that emerges when there is a "universal obligation of legal and status (moral) equalization of homosexual and heterosexual relationships – from marriage, via children adoption, to government subsidies for artificial insemination and gay culture acceptance in the media" (Antonić, 2014, p. 204). He concludes that the first and the third models are "authoritarian extremes", and that the third model is more frequently prescribed as an ideal in the USA and EU member-states, while he himself advocates choosing the median liberal model (Antonić, 2014, p. 205).

I still believe that the quality of a partnership and the relationship towards the child do not depend on someone's sexual orientation. Moreover, I believe that it is the right of every person to be guaranteed certain rights and their protection by the law, in the manner the proposed Draft Law on Same-Sex Unions does and, in that respect, the median liberal model seems acceptable to me. However, the tendencies in comparative law in this area and the manner of implementing the policy of the society creation seem to send a message that in the future it will be possible to use money in order to create any relationship that was exclusively natural and legal in the past, God-given, and that the legislation and case law will solely be in the function of supporting the consumer society I which it can or will be able to pay someone else's womb and body that will undergo labour pains for the child who will be called ours, independently of whether we are in a heterosexual or homosexual relationship or marriage. That is exactly what should concert us most – the message that money can buy absolutely everything.