The day many have dreaded, finally arrived: pengovsky is blogging again… 😉 No, seriously, this is bad news. The Constitutional Court finally ruled on the bid to disallow the referendum on the recently passed Family Code which – among other things – allowed same-sex weddings and adoption. In a 5-4 ruling, the court decided to allow the referendum bid to continue as potential defeat of the new code on the referendum would not create an unconstitutional situation.
Constitutional judges, an archive photo (source)
Obviously, all hell broke loose on the internets. The question of same-sex marriages and adoption is one of tolerance, diversity and general advance of civilisation. It is also a question of the general principle of rights of a minority being decided by a majority. Indeed, the debate on the issue in Slovenia is no different than anywhere else in the world. Or, if it is different, it’s only even more primitive, supremacist and laden with flawed reasoning and common sense, based on the elusive notion of “natural laws”. In short: the question at hand is why on earth should the majority decide on how and why should people love each other and have a family.
What the fuck happened?
On the other hand, we have the rule of law, the notion that constitutional rights can be executed under (more or less) the same standard and that all people will be treated more or less equally in similar legal situations. In this case, the question at hand was whether the referendum on the Family Code should be allowed or not. And the only way the court would ban the said referendum was for the government (which initiated took the case to the court) to show that the success of the referendum bid (i.e.: the rejection of the Family Code) would create unconstitutional consequences. It failed to do so.
It is all painfully simple, actually: What we had here, was not the question of a majority deciding on the rights of a minority. The legal right of same sex couples to marry and adopt children does not yet exist. One could argue that same sex couples have this right per se, but in terms of legal definitions, these rights are yet to be established when (if) the new Family Code comes into force. It is these future rights which were pitted against the existing constitutional right of the people to have a referendum on (almost) any given issue, provided they collect 40.000 signatures.
And ever since the whole question boiled down to this dilemma, the decision was more or less a foregone conclusion. Even more so, when it transpired (pengovsky failed to notice this) that the new code were to come into force a year after it would be published in the Official Gazette. Why this provision was put into the legislation in the first place, is beyond me. But fact of the matter is that a rejection of the law on a referendum only means that the parliament can not pass the same decision within a year. So, the government shot down its only potentially valid argument, because even if a “no” vote would somehow create an unconstitutional situation, it would only do so for a year. A year in which the provisions of the Family Code would not be operative one way of the other.
Furthermore, since the rights of same-sex couples to marry and adopt children were yet to be established, whereas the right to a referendum already exists, it is against the concept of the rule of law to suppress an existing right in order to establish a new one. Yes, this one is counter-intuitive, especially if – as the theme goes – all men and women are created equal and other than sheer narrow-mindedness, stubborn traditionalism and homophobia there is no reason why same-sex couples should not enjoy absolutely equal rights than their heterosexual counterparts. In fact, one could argue that the Family Code as a whole resolved an inherently unconstitutional situation, where same-sex couples were denied equal rights. But no one did that. Instead the government argued that a potential rejection of the Family Code would create (and not perpetuate) an unconstitutional situation. An even if it claimed “perpetuation”, the government would probably be overruled, as – technically – under certain circumstances, the court can allow same-sex adoptions under existing legislation.
Justice vs. Rule of law
Make no mistake. The backlash will be ominous. The “no” campaign spearheaded by Aleš Primc and his band of homphobic astroturf twats will naturally claim that this proves them right all the way and that the Family Code was declared unconstitutional. Various gods will be praised (for it was not only the Catholic Church which went against the Family Code. Luteran and Muslim clerics pitched in their two cents as well), politicians will once again take to the barricades of the clash of cultures and in terms of rhetoric we’ll be back in Medieval times before you know it.
But as long as we – as a society – adhere to the rule of law as the basic principle which governs interactions of our various rights, this is it. We may be unhappy about it (I sure am), but calling Constitutional Court names for upholding the rule of law (rather than bending it, as it – this must be said – did a couple of times), will get us nowhere.
Very recently, just prior to elections, the political right wing spearheaded by Janez Janša‘s SDS tried to differentiate between justice and the rule of all. In this, it came dangerously close to ideologies of various white supremacist groups in Slovenia (pengovsky has yet to write this up). At that a lot of people – yours truly included – went out on a limb to show just how dangerous and destructive a sentiment this was. And yet, here we are, a month or so later, with the more fervent elements of the left wing doing almost exactly the same. Just because you (me, we, whathaveyou) don’t like the decision of the court, it does not mean that it is inherently wrong. It’s just not what we would like it to be. Period.
True, the institutions of the state are there primarily to protect the weak from the strong. In the big picture the weak got the short end of the stick this time around. But there are ways to go around this (albeit huge) setback. One is to change the constitution. This has been done before. Another way is to do your abso-fucking-lutely everything to help the legislation survive the referendum vote in the face of terrible odds. This, too, has been done before.
P.S.: I hate to be an I-told-you-so, but… I did tell you so…