Constitutional Court OKs Referendum on Family Code

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.

The catch

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.

Now what?

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…

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Family Code: There Must Be Over Fifty Thousand Screaming Love And More For You…

It was Simon Zelotes or Simon the Zealot who in the seminal rock opera Jesus Christ Superstar urged Jesus to attack Roman occupiers for he was followed by the fifty thousand who screamed love and more for him. All that was needed was for Jesus to add a touch of hatred for Rome and Galilee would be free once again. It was, in short, an attempt to use religion and its followers to political ends. Fast forward two thousand years and you’ll find similar zealots in Slovenia. It’s just that they’re not fighting Romans but gays. And lesbians. And bisexuals. And anyone else who doesn’t subscribe to the notions of “natural laws”, “normality” and “tradition”, freeing Slovenia not of Latin occupiers but of evil and unnatural ideas, making it a God-given heterosexual haven.

Aleš Primc’s “defenders of all things natural” (source)

As both readers of this blog know, it all has to with the new Family code which the parliament passed last week after what was most likely one of the more brutal legislative procedures in the history of this country. Not necessarily the most brutal, but definitely close. In fact, it was one of those cases where the entire breadth of the ideological and cultural divide in this country became visible. This was not a power struggle nor was it a fight over a slice of the ever thinning financial pie, not even a run on well-paid government jobs. It was, pure and simple, about what kind of a society Slovenes (will) live in. Was? Is, rather. Because even though the Family code was confirmed by the parliament, the ordeal is by no means over. The law, which was significantly watered down on most crucial points in a vane attempt to placate the right wing, miraculously escaped a veto in the National Council but is now subject to yet another referendum bid.

A grass-roots campaign headed by former SLS member Aleš Primc and heavily backed by the Catholic Church was and still is very vocal in their opposition to the new code. As the debate progressed it became more and more obvious that (just as the more observant suspected all along) positions of the political right-wing and Primc’s campaign itself were extremely harmonious and synchronised. In fact, Primc and his lot were only saying what the right wing was thinking. And in the end, they ended up saying it as well.

I’ve no problem with gays in fact I have many gay friends

The level of hypocrisy, double morals and false arguments reached almost unprecedented levels during this debate. No matter how often the myth of “a normal family” was debunked, the opponents of the code kept getting back to that (case in point being France Cukjati MD, of Janez Janša‘s SDS), claiming that by extending the definition of a family beyond its current scope, the traditional family (mother, father, offspring) would somehow lose on importance. That the very fabric of this society will be irreparably torn and that the nation as such will die off sooner rather than later. But woe be unto them who would dare to think that there was anything remotely homophobic in their opposition to the Code because… wait for it… they have a number of gay friends!

This, obviously is the most perfidious of arguments. Justifying one’s homophobia by claiming to have gay friends while bashing them and their rights is derogatory to the extreme. The more the political right tried to prove that their argument was not about denying gays and lesbians equal rights, the more they were proving exactly that. But to be fair, there was a lot of this going around on the political left as well, only in a more subdued manner.

This was quite probably the main reason the code was watered down significantly. Specifically, provision which originally allowed same-sex marriages was reduced to allowing civil unions with full rights while the provision allowing child adoptions by same-sex couples was tightened to allowing adoptions only if one of the partners is a biological parent of the child. Both provisions are a marked improvement over the existing situation but still stop short of completely equalling same-sex and heterosexual couples.

Clash of cultures

Officially, this watering-down was meant to placate Primc, his gang and the political right. But since the only way to placate them was to kill the code entirely, the move was more likely meant to make the code more acceptable to the “traditionalists” on the political left. The fact that the Code was passed by a relative rather than an absolute majority only further strengthens this particular line of thought.

Be that as it may, the new Family Code was passed and – miraculously so – the National Council did not veto it, which means that it should be enacted soon. Well, not really. There’s still the possibility of a referendum. And sure enough Primc and Co. collected 32,000 signatures (only 2500 were needed) to initiate referendum proceedings. In this enterprise they were assisted by the Roman Catholic Church which apparently was more than happy to let them collect signatures in or near churches. But since the Church takes it upon itself to decide questions of morality and properness (never mind the paedophile scandals and the 700 million debt accumulated by a single diocese in Slovenia) this was to be expected. Rather than going apeshit about it, one can only conclude time and again that when push comes to a shove the political and ideological right will resort to any and all weapons in this particular clash of cultures.

What. Happens. Next.

Anyways. President of the parliament Pavle Gantar (who, apparently, will step down sooner rather than later) is now obliged to initiate the procedure in which the proponents of the referendum must collect 40,000 confirmed signatures in a month’s time to call a referendum on the Family Code. Although they collected 32k signatures in a matter of days, the task is slightly more difficult as those 40k signatures must be given on a special form and confirmed by an official at an Administrative Unit (upravna enota) which – if nothing else – means a trek downtown, standing in line and doing the paperwork rather than just signing on the dotted line and being tapped on the back by the local priest. Gantar already said that the procedure will be initiated on 1 September since initiating it now would mean it would end during summer recess.

However, it is probably a safe bet that Primc and Co. will collect enough signatures to have a referendum called. Under this scenario, the government will then petition the Constitutional Court to deny the referendum on the basis that it would mean a popular vote over basic human rights and/or could mean imposing the will of the majority on a clearly defined minority of the population and thus discrimination based on sexual orientation which is explicitly forbidden by the constitution.

Elementary, my dear Watson…

The case seems open-and-shut. There can be no popular vote on human rights. They apply to everyone and are exerted directly, based on the constitution rather than via specific legislation. Elementary? Not really. Sadly, this may not be the case. Technically the Constitutional Court will be asked to deny petitioners their right to a referendum against the right of same-sex couples to have their family-related rights equalled with heterosexual couples. And all of a sudden the case becomes highly complicated.

Luckily, gays, lesbians and everyone else who would benefit from the new Family Code have one thing going for them: a ruling by the Constitutional Court which declared part of the existing law on registration of same-sex couples passed under Janša government unconstitutional and basically said that heterosexual and same-sex civil unions should enjoy equal rights. But before one gets one’s hope too high it should be noted that this case referred only to the right to inheritance. Recently, the Constitutional Court showed cojones and acted pro-actively, effectively making policy, but the question at hand is, whether it will choose to do so again or will feel the need to back up and show restraint.

The final verdict, therefore, is far from conclusive. And Slovenia will thus continue to see bigots waving placards saying how grateful they are to have had a mother and a father at the same time denying some children to have either, saying how marriage is a sacred institution, denying those who want to honour it.

In the aforementioned rock opera, Jesus replied to Simon the Zealot that he doesn’t get it and that is not what Christianity is about. Well, someone should tell Primc and his gang, the political right and everyone who swears to defend the “traditional family” and the “natural order of things that taking the Lord’s name in vain and forgetting the “love thy neighbour” part is making then anything but good Christians.


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The Greatest Trick The Devil Ever Pulled…


You’ll see what a palace he had built for himself with the fortune
comparable only with Byzantine Caesar or the Great Khan of Tartars.
Now you probably understand why he issued all those bulls against
the idea of poverty. There are crosses in Avignon with Christ crucified
but with only one hand nailed to the cross while he’s touching a purse
around his waits with the other, as if to say that He approves use of
money in ecclesiastic matters.

The above passage from Umberto Eco‘s The Name of The Rose came to mind when pengovsky first heard of the financial hardship the Maribor archdiocese found itself in. And Lord, are we talking hardship. According to an article in Italian L’espresso (in English, surprisingly so), which exposed what until now was only alluded, the archdiocese, which gives guidance to a flock of some 100,000, ran up a debt of some 800 million euro. No, it’s not a mistake. Eight hundred million. That’s more than three times the amount of Slovenia‘s share in Greek bail-out. I won’t bother you with the details, especially since you can read them up in the original article. Suffice it to say that they’ve put all of their eggs in a couple of not very safe baskets and then forgot to watch the baskets. And now they can’t even make an omelette out of broken eggs.

Not that the archdiocese is helping its case. Their official response was full of hypocrisy, false humility and other nouns we’ve come to connect with the Roman Catholic Church. Namely, thev’ve written that they “are aware of their indirect responsibility to shareholders, employees and the public. Our special responsibility goes to people of Catholic faith and all those to whom we were sent to spread the word of Christ and help them in times of hardship. We realise that in the past we have not always made it clear that ours is purely a mission of spreading the faith, education and charity. In the past the Maribor archdiocese has focused on economic matters only to fund and further develop the above pursuits. Our goal was to strengthen our financial positions to better execute our pastoral, educational and cultural activities. These activities are in many countries partly funded by the state. As this is not the case in Slovenia, we tried to establish an economic presence. Today, we realize that this was a wrong decision.

It is highly tempting to go ha-ha (<- click the link, goddammit! 🙂 ) on the Maribor archdiocese (or on the Slovene Roman Catholic Church as a whole), especially since the clergy took virtually every opportunity to bash the Slovenian noveaux riches which have lately been distilled into failed tycoons a la Boško Šrot, Igor Bavčar (remember them?) and lately Bine Kordež of Merkur and Ivan Zidar of SCT. And suddenly, that same organisation, primarily tasked with spreading His word, love for little boys and preventing use of contraceptives turns out to be on the fast track to the fourth circle of hell.

Slightly more than a year ago there was a lot of talk about “exit strategies”. You know, getting back to the business as usual. Back then there were a couple of competing documents, all of which fancied themselves as “exit strategies” and all of them failed to deliver. One of those documents looked beyond the scope of immediately visible and while it didn’t provide answers it pointed out most of the right questions. The problem is that it was outside of the (still) accepted neoliberalistic socio-political discourse and it was quietly forgotten. Everything that followed in its wake were either half-baked compendiums of various semi-useful theories often contradictory in nature and content, badly disguised attempts to totally derail the country and take power by means of early elections or just plain old throwing sand in the wheels of any attempt to fundamentally change the situation. Two of those we can chalk down to Janez Janša‘s SDS, one to labour unions. You figure out who is responsible for what 🙂

Anyways, point being that since any attempt to kick-start things by broadening the spectrum of acceptable was doomed to failure be it from the opposition or the labour unions (plus a little waywardness within the coalition), the breaths of the acceptable became increasingly narrow. This narrowness of course is not something new, but rather became the “accepted norm” of the last thirty years (yes, Slovenes embraced capitalism before we embraced democracy). Soon everyone was expert at everything and those on the bandwagon looked down on those who did not or could not jump on it. And there were mighty few people who didn’t at least attempt the jump. With the power of hindsight it seems perfectly logical that Maribor archdiocese did what it did and that the whole thing went straight to hell but the scope of damage is staggering nevertheless. The total amount of so called “tycoon” credit lines extended to various Slovene companies reportedly amounted to 2 billion euro. Increased by another 800 million, this means that the Roman Catholic Church in Slovenia is responsible for almost 35% percent of all bad debt in this country.

Granted, the Church had realised long ago, even before the dawn of capitalism that money and property mean power. This, after all was also the declared goal of Maribor archdiocese: to promote, evolve and expand the teachings (and with them the influence) of the Roman Catholic Church. But this time it wasn’t just that people who are in the business of faith switched to the business of making (or, rather, losing) money. What we have here is a situation where men of faith put their faith in money. This goes beyond pure attitude one has towards the Church, be it on an ideological or purely personal level. This is probably the final proof that capitalism as we had known it until the fall of 2008 indeed had no real alternative and that in many respects still doesn’t have one, since any alternative which oversteps the boundaries of a neoliberalistic discourse is automatically discarded and – vice versa – every alternative which does not overstep those boundaries is apparently self-destructive.

Generally admonishing the Catholic Church for their ultimate financial fail will get us nowhere, nor will it radically change the playing field. To those who generally are not favouring the Church this is only the latest proof of what was known all along. To the flock, this was probably a shock, but the relation of the faithful to the clergy is theirs to handle. However, rather than dancing on what is arguably soon to become the economic grave of Maribor archdiocese and possibly the entire Roman Catholic Church in Slovenia (it turns out that Ljubljana archdiocese was helping out as well) we should be worried sick. Because if an institution with two-thousand-years-worth of history and collective memory succumbs to the lures of casino capitalism, we can finally get some perspective on just how strong, how deep and how irrational this crisis is.

Two thousand years ago Jesus apparently freaked out and told them that his temple is a house of prayer not a den of thieves. But in this day and age it seems that Keyser Söze was right when he said that the greatest trick Devil ever pulled was convincing the world he didn’t exist. This way, in a world which seemed like financial heaven, you could invest 800 million euro and like *that* it was gone.

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