Slovenia: Constitutional Court overrules National Assembly, giving green light for a referendum to cancel new law on homo-“marriage”

ImageHandler.ashxWhat an incredible achievement! Against all odds, and despite having all the country’s mass media and nearly all political parties against them, the Slovene civil society platform Za otroke gre! (“Its for our children!”) has managed to ensure that a referendum will be held that will allow citizens to have their say on the hot button issue of same-sex “marriage”.

In Slovenia it has one again become clear that same-sex “marriage” is an innovation that powerful elites (we use that term to refer to those groups’ political and financial power, not to their wisdom and ethos) want to impose on an unaware and, at times, indifferent, population. But in Slovenia, the defenders of marriage and family are neither unaware, nor indifferent. Already in 2012 they managed to overturn an attempt, supported by all political parties but one, to adopt a new Family Code that would have given to registered same-sex “civil partnerships” the exactly same rights as to married couples, notably with regard to child adoption. The instrument to achieve this was an abrogative referendum that allows citizens to overturn legislative bills before they enter into force.

Angered by such insubordination on the side of ordinary citizens, the country’s political caste decided to add insult to injury: it adopted a new bill that provides for same-sex “marriage”, thus pushing their aberration even further than the bill that had been rejected in the 2012 referendum. And, in order to prevent any further “road accident”, it altered the rules for the abrogative referendum, so that this time it would be significantly more difficult for citizens to overturn the “reform” that was going to be imposed on them.

But the brave citizens didn’t let go. Instead, they managed to fulfil – and indeed spectacularly over-fulfil! – the new requirements for obtaining a referendum. In a country of less than 2 million inhabitants, they collected 80.000 (instead of 2.000) signatures within one week to launch the process, and then 48.000 certified signatures within just 4 days (instead of 40.000 within 35 days), which normally suffices to make the organizing of a binding referendum compulsory.

But same-sex “marriage” isn’t a subject on which the governing class wants ordinary people to have a say. In an act of unprecedented aloofness and impertinence, the National Assembly with a strong majority of 53-21 votes decided to block the referendum despite the visibly strong public demand for it, saying that, if successful, it would lead to an unconstitutional result, depriving a group of people (namely those with same-sex attractions) of their right to marry.

This argument was, of course, just ridiculous. It implies from the grey of times until today the legal regulation of marriage in Slovenia has never been in conformity with human rights (including as from 1990, i.e. 25 years ago, when Slovenia’s Constitution was adopted). It also ignores the fact that this debate is not about whether someone does, or does not, have a right to marry, but on what marriage means. But neither the European Court of Human Right, nor the UN Human Rights Council, nor the Slovenian Constitutional Court have ever stated that the right to marry comprises the right to “marry” a person of the same sex. Indeed, there are decisions by the UN HRC and the ECtHR that say the exact opposite: marriage between persons of the opposite sex is a human right, but same-sex “marriage” is not.

The National Assembly’s arrogant and wilful disrespect for the Constitution threw another obstacle into the citizens’ initiative’s way towards a referendum: an application had to be filed to the Constitutional Court, requesting it to overturn the National Assembly’s decision. And indeed, the Constitutional Court has now issued its decision, saying that, while pretending to “defend” the Constitution, the politicians have instead violated it. Their decision to block the referendum was an ultra vires act, because it is not for the National Assembly, but for the Constitutional Court alone, to decide on the constitutionality of a legal act. And such an examination can be applied for once the act has entered into force, but not earlier.

One fails to see how the Constitutional Court could have come to any other decision in this simple and clear cut case. The narrow outcome of 5-4 votes is not indicative of any ambiguity in the legal situation; instead, it seems to evidence that the political and media pressure on the judges must have been immense, and several judges seem to be more loyal to their political masters than to the law. Nevertheless, courage and honesty have prevailed, albeit narrowly, over “political correctness”. Citizens have won, the “elite” has lost.

The referendum is likely to be held before the end of the year. In order to be valid, more than 20% of the country’s voting population have to take part in it. This creates a significant structural advantage for those in favour of homo-“marriage” over those opposing it.

We nevertheless wish the organizers of Za otroke gre! an overwhelming success in mobilizing their fellow citizens for marriage and family. This time it is clearer than ever before: defending marriage means defending democracy.