Just before the summer break Slovenian constitutional court released a landmark ruling on same-sex marriages and adoptions. Not to put too fine a point on it, the ruling wiped the floor with the obviously discriminatory definition of marriage as written in the Family Code. As of last Friday, same-sex couples can legally marry and adopt children, enjoying the same privileges and obligations as heterosexual couples.
Or, do they? Pengovsky will not give anything away by noting this was a landmark ruling. It settled things that needed settling a long time ago. Indeed, the very first attempt to legalise same-sex weddings was made way back in 2004. This was during the liberal government of Tone Rop, after a decade of workgoups, drafts and whathaveyou. Friday’s ruling aside, there is still no comprehensive legislative protection of these rights. So, what the fuck really happened?
In some ways, the ruling in question is even more fundamental than the ruling on Covid-19 measures in mid-2021. In that case, the constitutional court put some very explicit limits on executive authority. It basically told the government that broad and vague powers do not mean it can get away with authoritarian shit.
Two decades of attempts
This time around, the court settled an issue that has been a political hot potato at least for the last two decades. More broadly, however, the national conversation on non-discrimination against and equal rights for LGBTQI+ people predates Slovenian independence. In fact, it was one of core tenets of the drive for democracy from mid-80s on.
That it took almost twenty years from the first legislative attempts to last week’s sort-of-legislating-from-the-bench, is borderline criminal. And yet, it also shows just how much the society had changed over the last twenty years.
Even if it was always accepted that the Slovenian constitutional framework allowed for same-sex weddings, the thinking was that this was not a right unto itself but a right yet to be acquired.
In fact, as little as ten years ago, the constitutional court pointedly refused to disallow a referendum on the new Family Code using that exact argumentation. A decade later, the same court (but with a different complements of judges) came to the conclusion that same-sex couples already have the right to marriage and adoption.
In a nutshell, the 6-3 majority in the constitutional court said in no unclear terms that defining a marriage as a union between a man and a woman constitutes discrimination. In then added that discrimination cannot be justified by tradition. Nor can it form the basis of an otherwise legitimate government policy. Ouch. Such clarity is almost unprecedented.
Scathing rulings are generally reserved for glaring breaches of legal and constitutional order where even the notoriously pussyfooting judges at the Muddy Hollows’ top court don’t see any other way. Which is all you need to understand that the court (the majority at least), really saw no other way.
In fact, the unusually blunt ruling is further strengthened by professionally weak and intellectually dishonest dissenting opinions by judges Jaklič and Svetlič.
Dissenting flaming bags of canine excrement
These two characters couldn’t resist some dog-whistling and virtue signalling. As a result, they wrote dissents that amount to a flaming bag of dogshit, and pengovsky is probably doing a disservice to canine feces with this comparison.
I mean, Jaklič managed to come up with an idea that if same-sex weddings are allowed, why not allow polyamorous or even incestuous relationships. Even as far as bad-faith arguments go, that is just fucking preposterous. I mean, the dude boasts two Ph.D’s, one from Harvard and the other one from Oxford, and this is the turd he comes up with in lieu of an counter-argument? For fuck’s sake…
Svetlič, on the other hand, spent the better part of two pages coming to a conclusion that the existing legislation is indeed discriminatory, but then somehow decides it isn’t. Go figure.
At least judge Šorli (the third member of the solidly conservative camp at the court) had the good sense not to try and defend his nay-vote with a separate dissenting opinion.
The fight is yet to be won
All of that said, however, the matter is not closed and that the fight is not won. Quite the opposite, in fact.
Namely, for all its decisiveness, the constitutional court went out of its way to state that there is nothing that prevents the legislative branch from limiting marriage to heterosexual couples only. Provided it finds a way not to discriminate against same-sex couples while doing it. Which is a bit of a catch-22, of course.
Be that as it may, in theory at least, the court left it to the parliament to sort out the nitty-gritty of transposing this ruling into actual legislation, setting a six-month deadline to do so.
Crucially, the court stipulated that in the mean time same-sex couples enjoy the same rights and obligations as their heterosexual counterparts. Which kind of solves the above Catch-22. The court clearly thinks there is no fucking way of defining marriage solely as a union between a man and a woman and keeping it constitutional.
Igoring the court leads to fuck-ups
There is an age-old tradition in Muddy Hollows of ignoring deadlines set by the constitutional court. Usually, pulling shit like this has no real consequences. But every so often it can lead to major fuck-ups.
Like that time a year ago when the parliament almost didn’t address an unconstitutional feature of Slovenian electoral system. The government, MPs and political parties kept dragging their feet for more than two years. As a result, they almost threw the entire 2022 election in doubt.
In the end, catastrophe was averted. But the larger point is that there is a downside to messing around with constitutional court rulings. Even if the court itself lacks any sort of coercive measures to enact them.
This is to say that the ruling left-liberal coalition may be tempted to keep things as the judges left them on Friday. If nothing else, the government of Robert Golob has enough on its plate as it is (inflation, energy crisis, public media autonomy, etc..) and may be tempted to see equal rights as a problem that fixed itself. Kind of.
This would be a very dangerous assumption.
Leaving this as they are, and relying on the ruling as the law of the land, is akin to inviting any future right-wing/conservative coalition to try again. All they would need to do is to rewrite the offending article of the Family Code, ram it through the parliament, and then wait for another challenge. And with any luck for the conservatives, the majority at the constitutional court will have flipped and we would be back to partying like it’s 1975.
So, what to do?
Won’t someone think of the children?!
The dark truth is that even with this new ruling, the path to actually legislating same-sex weddings and adoptions will be a long and torturous one.
The moment the draft amendment enshrining equal rights hits the parliament floor, all the bickering about who cost Janez Janša the election in April will stop. The very next moment it will be all about LGBT ideology, cultural Marxism, destruction of traditional family and turning people gay.
Also, tHiNk oF tHe cHiLdReN!!!!!!11!!!eleven!!!
Assuming Golob’s parliamentary majority works its magic, perhaps even coming with some bullshit excuse to use the expedited parliamentary procedure (as governments of every way, shape and size are wont to do), there is the inevitable referendum.
The Catholic fundamentalists the likes of Aleš Primc, who until now managed to shoot down three attempts to legalise gay marriage, would like nothing more than have another go at it.
You see, there is nothing like a nice little culture war to reinvigorate the demoralised right-wing. A referendum on a wedge issue like this would go a long way in putting the conservative band back together.
This is the way
In fact, there is absolutely no guarantee the amended Family Code would not be defeated at the ballot box again. Just because Slovenians told Janez Janša to fuck off, this doesn’t mean that the whole lot of them suddenly turned into empathic love-is-love bunch. A fair number of are still the closed-minded, intolerant, homophobic twats. They just happen to hate Janša’s guts even more.
Unfortunately, there is no way around this. Perhaps, this time around, the re-emergent civil society will help the liberal and left parties to get their act together and beat the referendum initiative. But maybe it will not be enough. Again.
Be that as it may. If Muddy Hollows wants to join the developed world in terms of equal rights and stay there, the legislative procedure will have to play out in full.
This is the way.