The decision allows for the definition of marriage, rights of adoption for same-sex couples, and the mandatory nature of sexual education in schools to be put on a ballot, but not a question about registered partnerships having the same rights as marriage. The court ruled that it was unconstitutional to ask voters whether they “agree that no other cohabitation of persons other than marriage should be granted particular protection, rights and duties that the legislative norms as of March 1, 2014 only grant to marriage and to spouses (mainly acknowledgement, registration or recording as a life community in front of a public authority, the possibility to adopt a child by the spouse of a parent)?”.
All the ballot questions were put forth by the Alliance for Family (AZR), an association which currently shelters more than 100 pro-life and traditional-value oriented organisations. While the petition organisers have called it the referendum on the protection of traditional family, liberal circles and particularly LGBTI rights advocates have labelled it an anti-gay referendum. The AZR collected more than 400,000 signatures as part of its push to hold the referendum, thus fulfilling one of the main legal requirements – the support of 350,000 citizens – for a plebiscite to be held in Slovakia.
The Constitutional Court now essentially cleared three ballot questions to move forward:
Do you agree that no other cohabitation of persons other than a bond between one man and one woman can be called marriage? Do you agree that same-sex couples or groups shouldn’t be allowed to adopt and raise children? Do you agree that schools cannot require children to participate in education pertaining to sexual behaviour or euthanasia if their parents or the children themselves do not agree with the content of the education?
Experts in constitutional law mostly agree that this means President Andrej Kiska is obliged to call a referendum on the questions that the court proclaimed constitutional.
Slovaks were asked to come to the polling stations twice this year already, for presidential and European Parliament elections, and before the end of the year they will also vote in the municipal elections in mid-November. Now it looks like by the end of the year, or in the initial months of 2015, they will be called to the polling stations one more time, for the referendum. A referendum is only valid in Slovakia if more than 50 percent of the eligible voters attend. This happened only once since 1993 in Slovakia, with the referendum on EU accession in 2003.
Waiting for the official word
The Constitutional Court had to deal with the referendum questions after Kiska took the unprecedented step in September to request the opinion of the court on the constitutionality of the referendum questions, arguing that there were legitimate doubts whether the proposed questions pertain to fundamental rights. In Slovakia, the constitution does not allow referendum to be held on fundamental rights and freedoms.
By the time The Slovak Spectator went to print on October 30 the President’s Office had not clarified its next steps, saying that they would wait for the official written ruling to be delivered. The original deadline for the president to announce the referendum is 30 days after the petition was delivered (on August 27), but this was suspended until after the Constitutional Court ruled. The referendum then should be held within 90 days since the president announces it.
When Kiska announced he was turning to the Constitutional Court it was practically clear that the deadlines set out by the constitution would not make it possible to hold the referendum simultaneously with the November 15 municipal elections, as intended by the petition organisers. The Constitutional Court’s ruling has disappointed both sides of the debate.
Organisers feel slapped
The AZR said they would only make concrete statements about their further steps after the court publishes its official written ruling. They however staged a small showing for journalists on the day when the decision of the court was made public: first they gathered journalists in front of the presidential palace in Bratislava for a press briefing, but restrained themselves only to general statements and declined to take journalists’ questions.
“Decent people received a slap from the Constitutional Court today, because they are prevented from telling their opinion about family, from talking about what a family really is,” AZR spokesman Anton Chromík told the public-service Radio and Television of Slovakia (RTVS) after the press briefing. He claimed that the referendum is a tool for the citizens to give their opinion about any issue, and said that in most democracies the Slovak-style constitutional limits for referendum do not exist.
“The Constitutional Court really did not take the part of people and citizens of the Slovak Republic,” Chromík told RTVS.
LGBTI: Majority to decide minority rights
Meanwhile, Slovakia’s liberals and the LGBTI community openly talk about an anti-gay referendum. The Initiative Inakosť (Otherness) claimed in a statement that the Constitutional Court with its ruling “confirmed that in our country the majority can decide about the rights of a minority”. By ruling one of the questions unconstitutional, the court prevented total exclusion of same-sex couples from the protection of their family life in the future, the initiative conceded, but noted that since the very beginning of the referendum initiative they have been convinced about its unconstitutionality.
“The referendum organisers are not hiding their intention to, among others, prevent the access of part of the citizens to the legal institutes of marriage, adoption, and registered partnerships which fall under the right for privacy and family life, and cement this status quo for the future,” said Martin Macko, Initiative Inakosť’s executive director.
LGBTI rights advocates pointed out that the campaign ahead of the referendum is bound to be unbalanced, since the referendum organisers belong to a majority which has strong support among political parties and the biggest churches. On the other hand, the LGBTI community is still only “under construction”, its advocacy groups are active practically only in Bratislava, and there is no political party that would be fully supportive of their aims.