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: Let’s Party Like It’s 1975

On Tuesday evening the parliament completed the second (crucial) reading of the new Family Code which – among other things – was meant to allow same-sex weddings and child adoptions. Pengovsky covered the issue at some lenght including the compromise solution proposed by the govenrment which watered down some of the more controversial points of the new legislation.


The bizzare vote (screenshot by @kricac, source)

As both readers of this blog know, the new code was far from unequivocally supported. Indeed, the split did not occur along the left-right fault but rather along the division between traditionalists and progressives, where the former seem to be enjoying an advantage in numbers or at the very least in audiability. To put it blunty, the political right opposes the new  legislation vigorously and with gusto, while the left is divided between progressives who try to argue their case and traditionalists who support the law with noticeable lacklustre and would be just happy if the whole thing never happened.

It was partly because of this that the government sort of backed down on same-sex marriage and adoptions. Under the compromise solution gay and lesbian couples would not be able to enter wedlock but a partnership with the same legal consequences as marriage (including inheritance, which is a noticeable difference from the current law passed by previous government of Janez Janša). Furthermore, same-sex couples would only be allowed to adopt a child if one of the partners would be the child’s biological parent.

Compromise? Think again…

Hadn’t it been for the lukewarmness on the left, compromise would be utterly unnecessary as the right-wing opposition is fighting tooth and nail to defeat the code utterly and completely. Their cause is defended by a supposed grass-roots campaign headed by former SLS member Aleš Primc, who years ago led the campaign to ban medical fertilization of single women and succeeded (a refefrendum was called and the ‘no’ campaign won). Primc, following the shiny example of the NRA is using every possible means to draw attention and present himself as the ultimate defender of life, ‘natural laws’ and all things Slovene, to the extent of recently demanding that evolution and creationism be taught in schools side by side as ‘competing theories on the origin of maniknd’.

So, what we are dealing with here is in fact not a policy disagreement, but an ideological question of – broadly speaking – permissive libertarianism versus staunch religious reactionarism. The two are obviously mutually exclusive, so it is no wonder that Primc rejected the compromise solution as a trick, allowing for same sex marriage and adoption some time later on. And, to an extent, he’s probably correct. The thing is that he and the political parties behind him (SLS, SDS and NSi) will be satisfied with nothing else than a complete withdrawal of the new Family Code and then some, if possible.

Welcome to the twilight zone

The ‘then some’ moment occured, of course. Not just with the aforementioned attempt to introduce creationism to schools. That was, pengovsky suspects, just a target of opportunity. What happened on Tuesday evening when the parliament was voting on ammendments to the Code was much more bizzare.

In what was probably a momentary loss of attentiveness  by the coalition, the parliament adopted an amendment by Janez Janša’s SDS stipulating that all unmarried couples, save those who already have a child, should register their union with the proper authorities if they want to claim benefits stemming from such a union.

For the uninitiated: Ever since 1976 civil union was instituted (the linked Wikipedia article is wrong, btw) married and unmarried heterosexual  couples in Slovenia enjoy the same benefits, mostly in terms of inheritance, social security, child care and so on. It does not matter if the couple is married or has formalised the union in some other way, if at all. The amendment overturns more than thirty-five years of established practice which was since followed by many a country all across Europe and is recognised by a plethora of other Slovene legislation.

Now, some people know of or have experienced situations where a compulsory registration of a civil union would solve or even prevent many problems such as impostors claiming to have been long-time partners of a deceased family member or similar. However, what it at stake here is the inherent right of an individual to live the way he or she chooses without being disenfranchised vis-a-vis the state. Or – if you want to look at it the other way – the state has no business prescribing the preferred form of a union between two individuals.

The amendment is a very telling representation of just how deeply ideological this debate is. On one hand we have a drive to expand the definition of a family and with it the circle of those who would benefit from that, regardless of the way, shape or form of the union, regardless of whether the union produced an offspring (biologically or otherwise) and – most importantly – regardless of the sex of people entering such union.

On the other hand we have a drive to curb the existing scope of the acceptable: an exclusively heterosexual union where the partners will be left alone and eligible for benefits only if they produce an offspring, otherwise they have to declare their union to the state. This in fact shouldn’t come as a surprise, since this is exactly what the government of Janez Janša did to homosexual couples, forcing them to “register” their union with the authorities but refusing to allow marriage. And this is the crux of it all. The right wing’s inherent drive is to reinstitute marriage of a man and a woman as the only allowed form of a union between two individuals. You don’t have to be a rocket scientist to see how the Roman Catholic church is itching to chip in the “before God, until death do you part” as a compulsory part of a marriage ceremony.

Hold on to your hats

Luckily not all is lost. Tuesday’s fiasco seems to have happened more or less by mistake. At the very least, this is what president of the Parliament Pavle Gantar claimed in his tweet (protected, unfortunately) this morning when he said that DeSUS MPs got a bit disoriented for a moment and voted in favour of the amendment instead of against.

Parliamentary rules and procedures allow for amendments originally introduced in the second reading to be re-amended in the third (and final) reading and apparently this is what is going to happen. Mind you, things will probably not go smoothly. First of all, the Liberal Democrats of Katarina Kresal, the most ardent supporters of the new Family Code are saying that they will not support the compromise solution, but demand that the original version of the Code be passed.

While one can understand the sentiment, this will probably not be possible, because it would mean scrapping the whole second reading and most likely make the traditionalists on the left very nervous, perhaps to the point of withdrawing their support of the new legislation. And secondly, even when (and if) the Code is passed, this does not mean the end of the road. What will most likely happen is yet another referendum bid.

One tractor referendum (click if you don’t get it)

Aleš Primc said time and again that he will go all the way in trying to defeat the Code. SLS said about as much the other day when they hinted at the possibility of calling a referendum on the issue. And with this the Constitutional Court once again steps onto the stage front and centre. The coalition will most likely argue that having a referendum on human rights of minorities (in this case gays and lesbians) is unconstitutional as their rights are not subject to popular vote but inherently exist. Furthermore, the new Code does not limit existing rights to any group of citizens, but only increases the scope of population eligible for existing rights (or introduces new rights, whichever you please).

On the other hand, the right wing – with Primc as the probable primary plaintiff – will most likely argue that the the people have the right to decide what kind of a society they want to live in and that – if anything – this is exactly the issue one can and indeed must have a referendum on the issue.

The thing is that no one knows for sure what the court will decide. On one hand it seems logical that there can not be a referendum on human rights, especially rights of an defined minority within the society. However, things are not that simple. Recently, the court made it a principle to deny only those referendums which could result in a continuation of an unconstitutional state. Hence, a pre-existing and established unconstitutional situation must exist for the court to deny a referendum on a law addressing the issue. Which is sadly not the case here. This is not to say that a referendum on Family Code will be granted, but that the coalition faces yet another uphill battle and that the court’s decision – no matter the outcome – will be a landmark one, defining the issue of “acceptable” family for years or even decades to come.

 

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