In Slovenia, it’s not the first time we’ve rejoiced over the acceptance of a law that would permit the equal[1] treatment of same-sex partnerships. We were then on the receiving end of a campaign full of hate and lies, which resulted in same-sex partnerships remaining separate and discriminated against in the form of the Same-Sex Partnership Registration Act.
Since the constitutional court has in the past allowed two referendums (in 2015 as well when the 90th article of the constitution had already been changed [2]), it does not surprise me that the question arises, have we finally concluded this 25-year long journey for the equality of same-sex partnerships.
However – what makes this time different?
At first referendum in 2012 the Family Code still imposed the distinction between marriage and a partnership, although a large part of the different treatment of same-sex and heterosexual partnerships was eliminated. The constitutional court argumentation at the time was based on the time of its operation: “Because the Family Code only comes into practice a year after its operation, the result of the referendum does not influence the emergence of unconstitutional consequences. As such, in the case of the rejection of the Family Code during the referendum as in the case of its acceptance, its legal position stays the same, namely, even a year after the announcement of the result of the referendum the use of the Marriage and Family Relations Act and Same-Sex Partnership Registration Act stay in place. This period is with minimal discrepancies the same as the period in which the parliament is, after the Referendum and People’s Initiative Act, tied to the result of the referendum. The possible rejection of the Family Code therefore cannot cause unconstitutional consequences.”
In 2015 the amendment of the Marriage and Family Relations Act introduced complete equality. In its decision which once again allowed the referendum, the constitutional court wrote: “This means that the constitutional court has been entrusted with the final and authoritative assessment of unconstitutionality. Because of this, the text in the fourth segment of the second paragraph in the 90th article of the constitution which speaks of the removal of unconstitutionality, must be understood as a referendum cannot be issued only for laws which remove that unconstitutionality which were previously in its decisions already found by the constitutional court and of laws which remove the violation of human rights found with the judgement.” ESČ[3]
Here we now have two decisions from the constitutional court – access to marriage as well as the equal treatment in regards to access to adoption. Both decisions clearly stated that the regulations that treated same-sex partnerships differently were discriminatory. These decisions, however, did not only rule the legislative body to eliminate this discrimination, they also stated that marriage for same-sex couples is possible immediately (well, as soon as the bureaucratic apparatus updated the forms). As is the same for adoptions – same-sex couples can go to the centre for social work and have to be accepted into the process of adoption based on equal terms, if they are suitable adoptive parents. This of course does not mean they will automatically be given status. It means they can’t be prevented from applying only based on their sexual orientation or the sex of their partner alone.
Regardless of the fact that the law was accepted, and if the full-time opponent of equality, Aleš Primc, will be able to gather signatures for a referendum (during the writing of this article, the parliament accepted the decision of the inadmissibility of a call for a legal referendum in regards to the changes of the Family Code, Primc has appealed to the constitutional court), the gained rights this time come from the decision of the constitutional court and not just changes to the Family Code.
Then, why do we need a law?
- Because the court ordered the legislator to put this into practice. In the proposal of the law itself, they focused exclusively on the matter imposed by the Constitutional Court, i.e. the elimination of discrimination in access to marriage.
- Because it is necessary to determine how existing partnerships are transformed into marriages. This law stipulates that every couple who had a partnership will be notified (both partners) that they must express their consent within 6 months to the registrar that they want to convert from a partnership into a marriage. If this statement is not given by both partners within 6 months (or more, if there are justifiable reasons for this) or it is expressed the partnership is not wanted, the partnership ceases to exist. The conversion process is exempt from tax.
[1] 2012 – 2012 – The referendum for The Family Code in its first proposed version intended complete equality (marriage between two union between two persons) between heterosexual and same-sex partners. After a 15-hour debate if the registry committee, the then coalition decided on the acceptation of the Family code which along with marriage for heterosexual couples, implements a legal partnership for same-sex couples which excluded the access to adoption.
In 2015 the proposal of the amendment to Marriage and Family Relations Act anticipated complete equality – the change bringing the definition of marriage being a union between two persons.
[2] Section from the 90th article:
It is not admissible to call for a referendum:
for laws which eliminate unconstitutionality in the area of human rights and fundamental freedoms or other unconstitutionality.
[3] Uradni list RS, št. 80/2015 in OdlUS XXI, 5 | 28. 09. 2015
