By: Petra Janša
In a separate dissenting opinion, Constitutional Judge Rok Svetlič wrote, among other things, that “there is no such thing as the right to adoption”. Constitutional Judge Klemen Jaklič, however, pointed out that most of the questions on which the Constitutional Court decided were not even addressed by the order.
It is not common practice for the Prime Minister to hold a public meeting with the President of the Constitutional Court. But last Tuesday, the Prime Minister Robert Golob changed this practice and met with the President of the Constitutional Court, Matej Accetto, in the premises of this independent and autonomous state body that carries out constitutional review, and this in view of the fact that the judicial power in our country is separate from both the legislative and executive branches. Therefore, we should not be surprised by the concerns of too many about an attempt to influence one branch of government over another, which, of course, those involved officially deny. Former Prime Minister Janez Janša asked on Twitter when announcing the event: “The President of @Gibanje_Svoboda visited the sister branch #vzporednimehanizem?” With the unusual meeting of the representatives of the two branches of government, the fact that the Constitutional Court recently allowed same-sex partners to marry and adopt children, and Golob’s government has already approved the text of the draft law on amendments to the Family Code and sent it to the National Assembly in a shortened procedure, should not be ignored. The Constitutional Court adopted the controversial decision by six votes to three. Judges Klemen Jaklič, Rok Svetlič, and Marko Šorli voted against.
A decision in favour of the LGBT agenda
On July 8th, the Constitutional Court ruled that the legislative regulation, which stipulates that only persons of different genders can enter into marriage and that same-sex partners living in a formal partnership cannot jointly adopt a child, is inconsistent with the constitutional prohibition of discrimination. Slovenia thus became the 14th member of the European Union, which equalises the status and rights of all couples. Thus, in two separate decisions, the Constitutional Court annulled the first sentence of the third paragraph of Article 2 of the Partnership Act and the first indent of Article 22 of the Family Code. In addition, it found that the first paragraph of Article 3 of the Family Code, in the part in which it states that a marriage is a life union of a husband and wife, is inconsistent with the constitution. The first paragraph of Article 213 and Article 223 of the Family Code are also inconsistent with the Constitution. Several provisions of the previous law on marriage and family relations were also unconstitutional. The Constitutional Court has determined that the Parliament must eliminate the discrepancy between the applicable laws within six months. Until the changes in the legislation, a marriage is a life union of two people, regardless of gender, and same-sex partners living in a partnership can jointly adopt a child under the same conditions as spouses, the Constitutional Court wrote in a press release.
Svetlič: There is no right to adoption
All of the aforementioned decisions were adopted by the Constitutional Court by six votes to three. Matej Accetto, Katja Šugman Stubbs, Rok Čeferin, Špelca Mežnar, and Marijan Pavčnik voted for the aforementioned decision. Judges Klemen Jaklič, Rok Svetlič and Marko Šorli voted against. Several judges gave separate affirmative or dissenting opinions. Among them are judges Klemen Jaklič and Rok Svetlič, who gave dissenting opinions to both decisions. Constitutional judge Rok Svetlič wrote in it, among other things, that “there is no such thing as the right to adoption”. “It is a violation of which right then,” he asked. In his opinion, this does not mean that the legislator cannot adopt a regulation that would allow same-sex couples to adopt. “But the decision of the legislator cannot be circumvented by the engagement of the Constitutional Court,” he wrote. Regarding the possibility of entering into a marriage, he believes that the legislator had two strategies available when regulating the matter. “He could intervene by redefining the institution of marriage or add a new institution of partnership. He opted for the latter. There is no obstacle in the constitution that prevents the legislator from completely equalising both types of communities and regulating them in one institute and with a uniform name. But there is no support in the constitution for the judgment that he should do this,” Svetlič also wrote.
Jaklič: It is not an easy question
Constitutional Judge Klemen Jaklič, who pointed out that most of the questions on which the Constitutional Court decided, was not even addressed by the order, wrote a disapproving separate opinion this time as well. “The question before us is from the field of constitutional law, which is my area of specialisation. I have closely followed this question and the debates about it throughout my entire career, especially during my academic activities abroad. It is not an easy question, even if this or that individual or even this or that highest court of a country would like to portray it that way,” he wrote in the introduction and explained that it is one of the well-known puzzles in the field of constitutional law, which we can only understand if and when we try to solve it only with bare reason and logic, that is, if we leave aside the danger of personal bias or stereotypes (either traditional or modern) that must not influence the resolution of the issue, if it is to be fair. Jaklič emphasised that most of his colleagues did not indulge in purely logical reasoning, which is the only way to prevent inconsistencies and the potential intrusion of (conscious or unconscious) stereotypes into decision-making – and therefore he could not support such a reasoned decision. The traditional approach to these questions is based, among other things, on the idea that marriage is something special, granted to the union of a man and a woman, that is, a union from which offspring can naturally be born and raised in the family shelter, which is the foundation of the community and the source of the continuation of human life and thus humanity as such. This traditional approach teaches that what is the source of life itself has a special status. Hence the special granting of the status of marriage for the union of husband and wife, i.e., families, including the possibility of joint adoption of children by such a special couple.
About a “more modern” approach
“Of course, in the pre-argumentative phase, one must allow for the possibility that behind the traditional approach there is not only a bare argument, but perhaps so-called traditional stereotype,” continued Jaklič. “It is that such an interpretation of the very purpose (telos) of marriage, which applies only to some members of the community (even if it is just the majority), but not to the rest, unjustifiably excludes such others from marriage. Whether this is so or whether the traditional doctrine is based only on the described reasonable logical-differentiating foundation, it is possible to think further, only when we confront it with the alternative telos of marriage and family, as proposed by, let’s say, a more ‘modern’ approach,” wrote Jaklič and continued: “The ‘modern’ approach explains that it cannot be the majority, let alone the state, that determines the telos of marriage and family for individuals from the outside. If two adults genuinely and freely wish (‘consenting adults’) that their union should also be considered a marriage and that they could adopt children at the same time, and this does not have a particularly harmful effect on the latter or any third party, then there is no reason, explains the modern approach that anyone (let alone the state) could justifiably prevent it. Just as with the traditional doctrine, the ‘modern’ approach must first allow for both possibilities, i.e., that it is guided by a purely logical rational argument or a modern stereotype. Just by stating the described point of view, nothing has been resolved.”
Attitudes are based on stereotype
Jaklič continued his explanation: “If it wants to exclude the existing traditional doctrine with the power of the constitutional level, the ‘modern’ approach should first of all create and defend one of the internally consistent solutions. Here, however, a problem arises for the majority, which argued in the decision as it is. Regarding the key question – why exactly it is the unjustified exclusion of the same-sex minority from marriage and the joint adoption of children – the majority does not yet offer a logically consistent answer, or avoids it with an argumentative emptiness,” explained Jaklič. “If, for example, the majority’s decision in favour of the ‘modern’ approach were based on the previously described core argument of this direction (‘as long as it does not harm third parties, neither the majority nor the state has the right to prevent two consenting adults from their own vision of the purpose (telos) of marriage and family’), then at first sight this would logically consistent mean that other minority groups of consenting adults must also have this same right – to marry and adopt children. Both in the literature and in the constitutional judgment, for example, there are not only cases of polygamous couples, but also cases of incestuous couples of consenting adult individuals and many other unconventional couples who consider themselves to be an unfairly excluded minority,” wrote Jaklič in one of his dissenting opinions and in this work cited incest couples as an example, where a false counter-argument appears, saying that incest couples of consenting adults have a harmful influence on third parties, e.g. offspring, and that in the case of this group this is precisely the justified exclusion (differentiating) argument. Indeed, some incestuous couples of free adults are willing to sterilise themselves, from which at first sight it logically follows that the described core argument of the ‘modern’ approach, if it is really internally consistent, should also enable them to enter into marriage and adopt.
Jaklič also highlights conventional couples who consume alcohol excessively and the consequences for the offspring can be even worse than for the offspring of the aforementioned minority group. “But someone who consumes alcohol excessively is not excluded from the possibility of marriage, but representatives of the aforementioned minority are. Again, we see that the core argument of the ‘modern’ approach, if it is to be consistent, at first glance requires a more radical change – allowing marriage and the possibility of adoption to all adult representatives of non-conventional minorities who express their desire truly freely and do not harm third parties more, as it applies to groups of conventional couples,” explained Jaklič. “Therefore, if the majority advocates the exclusion of the traditional doctrine and the establishment of a ‘modern’ approach even at the constitutional (not only legislative) level, but it should also explain what exactly the supporting reason on the basis of which it came to such a conclusion is. This supporting reason should be internally consistent,” explained Jaklič.
There may be a third way
Jaklič allows the possibility that there may also be a third way, one that manages to convincingly explain why, at the constitutional level, out of the various minorities, only same-sex couples are the ones who are unjustifiably excluded from the possibility of entering into marriage and adopting children. “But then this needs to be addressed and explained, while showing how perhaps even such a solution (which excludes other minorities of consenting adults who do no more harm to third parties than groups of conventional couples) is nevertheless internally consistent with the core argument of the ‘modern’ approach,” said Jaklič and added: “The problem is that the majority neither addressed nor tried to answer any of these decisive challenges for our question during the discussion. With this, it has so far failed to demonstrate that its decision is based on a bare rational logical foundation (constitutionally correct supporting reason), as it should, and not perhaps only on a modern stereotype, which would be stronger than a commitment to legal argumentation,” explained Jaklič. “I am more reserved myself, at least in view of such an elaborate explanation of the majority. In such circumstances – when an interactive discourse with decisive arguments has not been established – the puzzle of which of the approaches (traditional, modern, or perhaps both) is based on stereotype and which of these or the other version is based on a purely rationally logical and internally consistent basis (the only constitutionally correct supporting reason), I leave open for now. The explanation of the order of the dilemmas which it was actually deciding on, was not even opened,” constitutional judge Jaklič concluded in a separate dissenting opinion.
The article was originally published in the weekly Demokracija.