So far, it has not been proven that the recent decision of the Constitutional Court, which allows same-sex couples to adopt children, is based on a bare rational-logical foundation (a constitutionally correct supporting reason), as it should be, and not only on a modern stereotype, which is apparently stronger than a commitment to legal argumentation. “I myself am more reserved about the decision than most, at least in view of such a hollow explanation of the majority. In such circumstances – when an interactive discourse with decisive arguments has not yet been established – the puzzle of which of the approaches (traditional, modern, or perhaps both) is based on a stereotype and which of these, or perhaps even a completely different version, is based on a purely rational-logical and internally consistent basis (the only constitutionally correct underlying reason), is a question I will leave open for the time being,” Constitutional Court Judge Dr Dr Klemen Jaklič wrote in his separate, dissenting opinion.
Last week, the Constitutional Court ruled that the current legal arrangements for marriage and joint adoption constitute impermissible discrimination against same-sex couples. In two decisions of the 16th of June 2022, the Constitutional Court concluded that the legal regulation, which stipulates that only two persons of different genders can enter into a marriage and that same-sex partners living in a formal partnership cannot adopt a child together, is inconsistent with the constitutional prohibition of discrimination. The Court set a six-month deadline for the legislator to eliminate the established constitutional discrepancy. It also decided that until the found unconstitutional provisions are eliminated, a marriage is considered to be a life union of two people regardless of their gender, and that same-sex partners living in a partnership can adopt a child together, under the same condition as spouses.
Constitutional Court Judge Dr Dr Klemen Jaklič, who pointed out that the decision did not even address most of the questions that the Constitutional Court was deciding on, once again wrote a separate, dissenting opinion on the decision. “The question before us is from the field of constitutional law, which is my area of specialisation. I have followed this question and the debates about it vigilantly throughout my entire career, especially during my academic activities abroad. It is not an easy question, even if some individuals or even some of the highest courts of certain countries want to make it seem that way,” he wrote in the introduction, explaining that this is one of the well-known, important questions in the field of constitutional law, which we can only understand as such if and when we try to resolve it with mere reason and logic, meaning, 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 decide on a mere logical-rational argumentation, which is the only way to prevent inconsistencies and the potential intrusion of (conscious or unconscious) stereotypes into the decision-making process, and therefore he could not support a decision with such reasoning.
“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, meaning a union from which offspring can naturally be born and raised within the safe environment of a family, which is the foundation of the community and the source of the continuation of human life and thus of humanity as such. And what is the source of life itself should have a special status, which is what the traditional approach teaches. Hence the special granting of the status of marriage for the union of husband and wide, meaning families, which includes the possibility of joint adoption of children by such a couple.”
Of course, in the pre-argumentative phase, one must allow for the possibility that behind the traditional approach, there is not just a bare argument, but perhaps the so-called “traditional stereotype,” Jaklič continued. Which is that such an interpretation of the very purpose (telos) of marriage, which applies only to some members of the community (even though they are the majority) but not to the rest, unjustifiably excludes other types of couples from marriage. Whether this is the truth or whether the traditional doctrine is based only on the described reasonable logical-differentiating foundation, we can only continue this train of thought when we confront it with the alternative telos – purpose – of marriage and family, as proposed by, let’s say, a “more modern” approach.
The “more 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 consenting adults genuinely and freely wish for their union to also be considered a marriage and they also want to adopt children, and if this does not have a particularly harmful effect on the latter or on any third party, then there is no reason, the modern approach explains, that anyone (let alone the state) should justifiably prevent this. Just as with the traditional doctrine, the “modern” approach must first allow for both possibilities, meaning that it is guided by a purely logical argument or a modern stereotype. Just stating the position described above does not yet solve anything.
Positions that are not internally consistent are based on stereotypes
If the “modern” approach wants to exclude the existing traditional doctrine with the power of the constitutional level, it should, first of all, create and defend one of the internally consistent solutions. Here, however, a problem arises for the majority, which argued what it did in the recent decision. The majority does not yet offer a logically consistent answer to the key question – why exactly is the exclusion of the same-sex minority from marriage and joint adoption of children unjustified. The majority basically avoids the answer to this question with an empty argument.
If, for example, the decision of the majority for the “modern” approach was based on the previously described core argument in this direction (“as long as this does not harm third parties, neither the majority nor the state has the right to prevent two free adults from their own vision of the purpose (telos) of marriage and family”), then this would, at first glance, logically consistently mean that other minority groups of adults must also have this same right – to marry and adopt children. Both in literature and in the constitutional judgment, for example, there can be cases of not only polygamous couples but also cases of incestuous couples of free adult individuals and many other unconventional couples who consider themselves to be an unfairly excluded minority.
Referring to this, Jaklič uses incest couples as an example, in which a false counter-argument appears, claiming that incest couples of free adults have a harmful influence on third parties, for example, their offspring, and that in the case of this group, this is precisely the justified, exclusionist (differentiating) argument. However, some incestuous couples of free adults are willing to be sterilised, from which, at first glance, 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 points out that 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, and 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 unconventional minorities who express their desire truly, freely, and do not harm third parties more, as is the case for groups of conventional couples.
“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, it should explain what exactly is the supporting reason on the basis of which it came to such a conclusion. And this supporting reason should be internally consistent. One such consistent solution is to include all the previously mentioned and many other non-conventional couples and groups in the circle of those who are allowed to marry and adopt children. Another way to tackle this may be the recognition that the core argument of the ‘modern’ approach (that the majority, and even less so the state, is not competent to exclude free adults who do not harm others, from their right to marry and adopt children) does not hold, because it logically leads too far, and that therefore a traditional approach, which attributes a special meaning (telos) to the union of a man and a woman, is not unjustifiably exclusive to minorities as one of the legislator’s options precisely because of the specially grounded telos of such a union as the only natural source of human life.”
Perhaps, there is a third option
Jaklič also allows for the possibility that there may also be a third way, one that manages to convincingly explain why, on the constitutional level, only same-sex couples are among the various minority 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 at the same time showing how perhaps even such a solution (which excludes other minorities of free adults who do not harm third parties more than groups of conventional couples) is nevertheless internally consistent with the core arguments of the “modern” approach.
They did not even discuss the said challenges
The problem is that the majority neither addressed nor even attempted to answer any of these challenges that are crucial to our question in the course of the debate. With this, the majority has not yet proven that its decision is based on a bare rational-logical foundation (a constitutionally correct supporting reason), as it should have, and not only on a modern stereotype, which is apparently stronger than a commitment to legal argumentation. “I myself am more reserved about the decision than most, at least in view of such a hollow explanation of the majority. In such circumstances – when an interactive discourse with decisive arguments has not yet been established – the puzzle of which of the approaches (traditional, modern, or perhaps both) is based on a stereotype and which of these, or perhaps even a completely different version, is based on a purely rational-logical and internally consistent basis (the only constitutionally correct underlying reason), is a question I will leave open for the time being. The explanation of the decision did not even open the dilemmas it was actually deciding on,” the Constitutional Court Judge Jaklič concluded his separate dissenting opinion.
Sara Bertoncelj
