No referendum to be held on marriage equality

Wedding rings pictured against rainbow colours.
The Constitutional Court upholds the National Assembly's decision that a referendum on gay marriages and adoptions is inadmissible. Photo: dpa/STA

The Constitutional Court has turned down an appeal by a conservative group against the National Assembly’s decision not to allow a referendum on a law codifying same-sex marriages and adoptions.

In a ruling announced on 11 January, the country’s top court noted that it had found the previous solution in the family code unconstitutional on two earlier occasions.

In fact, it was the Constitutional Court which legalised same-sex marriage and adoptions with immediate effect in July 2022, ordering the legislator to amend the family code accordingly.

At the time, the court said the definition of marriage as a union of a man and a woman and the inability of same-sex partners to adopt children was discriminatory.

The National Assembly amended the family code to enact full marriage equality, including with respect to adoptions, in October 2022. The upper chamber imposed a veto against the law, but the lower chamber overrode it.

In another attempt to quash marriage equality, a conservative group called the Children Are at Stake Coalition, which has been campaigning against marriage equality for years, filed for a referendum.

The same group initiated a referendum in December 2015 in which marriage equality was voted down by 63.5% of the voters who cast their vote. The turnout was 36.4%.

This time the National Assembly adopted a resolution that such a referendum would be inadmissible because it would challenge a piece of legislation that ends discrimination against LGBT+ persons.

The decision was based on a constitutional provision which states that laws which rectify legislative provisions deemed by the Constitutional Court as unconstitutional cannot be put to a referendum.

In November 2022, Aleš Primc and Metka Zevnik, the co-leaders of the Children Are at Stake Coalition, asked the court to quash the National Assembly’s decision not to allow a referendum on the matter, but failed.

The Constitutional Court said in its latest decision that, while the constitution provides for the possibility of a legislative referendum, there are cases when this is inadmissible.

This is in case of referendums on laws that eliminate unconstitutionality concerning human rights and fundamental freedoms or other unconstitutionality, it added.

The decision was made by seven votes to one, with judge Rok Svetlič providing a dissenting opinion and judge Marko Šorli a concurring opinion.

Svetlič said he had always advocated for the rights of gay people to be equalised with the rights enjoyed by persons who enter a marriage, as these rights stemmed from the mere fact that LGBT+ people are part of the community.

But he said “a significant number of people think that there is a difference between a same-sex relationship and heterosexual relationship, and this fact should enjoy respect”.

As for the provision allowing gay adoptions under the same criteria as for heterosexual couples, Svetlič said the court had made it clear that adoption is not a human right.

Šorli said that while he did not agree with the court’s previous two decisions on the issue, these had been made in a valid manner and were final and legally binding.

“Respecting court decisions, including those of the Constitutional Court, is one of the fundamental postulates of the rule of law and the core of constitutional democracy,” he added.