Slovenia says NO

The Slovenian people voted to overturn a law providing for equal rights to marriage for all. This happened in December 2015! Slovenia is deemed to be the most liberal Slavic country, a member of the European Union and a signatory to the European Convention on Human Rights. How could this have happened?

Let’s have a look at the chronology of events leading up to this referendum (it’s a bit boring, but necessary to understand the context).

Since 2006 same-sex couples had the right to registered partnerships with some limited rights of inheritance and social security in Slovenia.

In July 2009, the Constitutional Court of Slovenia ruled that the law violated the to right non-discrimination on the basis of sexual orientation and requested that this violation is remedied by amending the relevant law within 6 months.

A law tabled in December 2009 and finally adopted in June 2011 granted same-sex couples all rights of married couples, apart from joint adoption and the right to marry which were reserved for unions between a man and a woman.

However, by a referendum in 2012, the Slovenian people voted by 55% to reverse this law (and this, despite the judgment of the constitutional court that this law was necessary to comply with human rights).

In March 2015 a new law was passed in Slovenia amending the definition of marriage to a union between two consenting adults. A church-backed group called for a referendum on the issue. The National Assembly tried to block this referendum citing recent changes to the Constitution prohibiting referendums on issues that address unconstitutional situations.

The issue ended up at the Constitutional Court, which ruled that the referendum could go ahead. The reasoning was based on constitutional, rather than substantive grounds, citing that only the Constitutional court had the right o decide on the unconstitutionality of issues and on the division of powers of the state’s institutions.

The referendum was held on 20 December 2015 where two thirds of votes were against the equal marriage law. This means that the status quo returns to the 2006 situation, which the constitutional court clearly held to violate human rights.

This is an awful situation. A truly awful one. Not so much about the right to equal marriage per se. But more about the bigotry that is prevalent in society, about the unashamed statement by a large portion of the population that a part of its society should be discriminated against, and ultimately about the failure of the legislative and judicial bodies, both at national and European levels to offer any real protection against discrimination and bigotry.

The method of holding a referendum on human rights issues is a very questionable one, even though in the present case, from a constitutional law order, it seemed the most acceptable way forward. At the same time, the results of referenda are unpredictable and can go wrong. We all celebrated when Ireland voted in favour of equal marriage at its referendum earlier this year. The support of the people was overwhelming and emotional.

But how are LGBT people meant to feel about the result of the Slovenian referendum? Two thirds of those who voted in the referendum actually believe that a part of the population should be discriminated against! They actually took steps to ensure that. And there is something particularly cruel in this particular case. Usually, in referenda, people vote to give rights to people. In this one, they voted to take away a right to equality given by law. And they did so for the second time. And with a larger percentage than in the first referendum which was held in 2012.

How can people think like that? How can people act like that? We often blame politics, but here we have the people talking. And they speak with hate. They speak of a minority’s rights being suppressed. They speak openly of discrimination. They demand it. And they do so in full knowledge that what they demand is unconstitutional and violates human rights, as their Constitutional court expressly said so. This goes far beyond every day bigotry. What we are dealing with here is one of the most serious actions taken against human rights, directly by the people (not by governments, states, institutions). And the fact that they so without any shame is absolutely terrifying.

The question, as always, is “What now?”. Slovenia seems to be caught in a vicious circle. The Constitutional court orders the legislature to amend the relevant laws. The legislature does so, only for the amendment to be reversed by a referendum that the Constitutional court found to be legitimately held.

It seems inevitable that the case will end up in the European Court of Human Rights at some stage. But it is questionable whether that will help.

In the European Convention of Human Rights the right to marry is protected by Article 12, which provides “Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right”. While it is usual for human rights to be subject to limited and exceptional limitations, this is the only right which is “according to national law”. The consequences of this wording are extremely serious as the convention fails to guarantee the right to marry for all. To the extent that it subjects the right to national law, then this means that the signatory states are not obliged to confer this right to all people, and notably in our case to same-sex couples.

Article 14 of the Convention provides that “the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”. While sexual orientation is not included in the list on non-discrimination grounds, it has been ruled by the European Court of Human Rights that such discrimination is also prohibited. So what is the problem? The problem is that Article 14 is secondary and ancillary to the other rights. It is not a right per se, but applies only to the extent that a right in the Convention already exists. And since the convention does not grant the right to all to marry, then Article 14 does not apply. It’s a tricky little legal construction, isn’t it? On its face it looks like it’s doing all the right things, but in reality, it offers no legal rights to marriage to same-sex couples.

The European Court of Human Rights, when faced with having to decide on this issue, stated that the issue was left to regulation by the national authorities of the states and that the court should not substitute its own judgment in place on that of the national authorities who are better placed to assess and respond to the needs of society.

One can imagine that if the Slovenian case ends up in the European Court of Human Rights, the Court would be even more unwilling to substitute its own judgment to hat of the people where the “needs of society” have been proclaimed directly by them.

The failure of our “strongest” European human rights instruments to ensure an equal right to marriage for all is a deeply disappointing one. One would that the European Court of Human Rights had the bravery to indeed substitute its own judgment to that of states and enforce human rights for all. The Supreme Court of the US in its recent multi-page judgment on equal marriage was brave enough. It ruled that issues relating to human rights are too important to be left to either the will of the people of the will of the legislature. Maybe there’s a lesson to be learned there.

In the meantime, we are at the hands of the people and of politicians, their whims and prejudices.