In a separate dissenting opinion, Constitutional Court Judge Rok Svetlič wrote, among other things, that “there is no such thing as the right to adoption.” Meanwhile, Constitutional Court Judge Klemen Jaklič noted that the majority of the issues being decided on by the Constitutional Court were not even discussed before making the decision.
It is not common practice for the Prime Minister to meet publicly with the President of the Constitutional Court. However, last Tuesday, Prime Minister Robert Golob changed this practice and met with the President of the Constitutional Court, Matej Accetto, on the premises of this independent and autonomous state body, which exercises constitutional judicial review, and with the fact that the judiciary is separated from both the legislature and the executive in our country. Therefore, we should not be surprised when we hear concerns expressed by some about the attempts of one branch of government to influence the other, which is, of course, officially always denied by all those involved. When hearing about the meeting in question, former Prime Minister Janez Janša wondered on Twitter: “Did the President of the Freedom Movement party (Gibanje svoboda) visit a sister branch of the parallel mechanism?” And with the unusual meeting of the two representatives of two separate branches of government, we should also not overlook 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 a bill amending the Family Code and sent it to the National Assembly under an expedited procedure. The Constitutional Court adopted the controversial decision with six votes in favour and three against. The judges that voted against were Klemen Jaklič, Rok Svetlič and Marko Šorli.
A decision that benefits the LGBT agenda
On the 8th of July, the Constitutional Court of the Republic of Slovenia ruled that legislation stipulating that only people of different sexes can marry and that same-sex partners in a formal partnership cannot adopt a child together is incompatible with the constitutional prohibition of discrimination. Slovenia has now become the 14th member of the European Union to equalise the status and rights of all couples. In two separate decisions, the Constitutional Court thus annulled the first sentence of the third paragraph of Article 2 of the Civil Union Act and the first indent of Article 22 of the Family Code. It further found that the first paragraph of Article 3 of the Family Code, in the part where it provides that marriage is the union of husband and wife, is incompatible with the Constitution. The first paragraph of Article 213 and Article 233 of the Family Code are also incompatible with the Constitution. Several provisions of the previous Marriage and Family Relations Act were also unconstitutional. The Constitutional Court has set a six-month deadline for the National Assembly to remedy the incompatibility of the laws in force. Pending the changes to the legislation, marriage is considered to be a living union between two persons, regardless of their gender, and same-sex partners living in a civil partnership may jointly adopt a child under the same conditions as spouses, the Constitutional Court said in a press release.
Svetlič: There is no such thing as the right to adoption
All of these decisions were adopted by the Constitutional Court with six votes in favour and three against. The judges that voted in favour of the decisions are Matej Accetto, Katja Šugman Stubbs, Rok Čeferin, Špelca Mežnar and Marijan Pavčnik. The judges that voted against are Klemen Jaklič, Rok Svetlič and Marko Šorli. Several judges gave separate opinions, too, some of them dissenting and some concurring. Among them are also judges Klemen Jaklič and Rok Svetlič, who dissented from both decisions. Constitutional Court Judge Rok Svetlič wrote, among other things, that “there is no such thing as the right to adoption.” “So which right is this breaking, then?” he wondered. In his opinion, this does not mean that the legislator should not adopt legislation that would allow same-sex couples to adopt. “But the legislator’s decision cannot be circumvented by engaging the Constitutional Court,” he wrote. In regards to the possibility of marriage between same-sex couples, he believes that the legislator had two strategies available when regulating the matter: “It could have intervened by redefining the institution of marriage, or it could have added a new institution of civil partnership. He chose the latter. There is no obstacle in the Constitution to the legislator’s making the two types of unions completely equivalent and regulating them in a single institute and with a single name. But there is also no basis in the Constitution for the judgement that this should have been done,” Svetlič wrote.
Jaklič: This is not a simple question
Constitutional Court judge Klemen Jaklič, who pointed out that most of the issues that were being decided on by the Constitutional Court were not even raised in the discussion, has once again written a separate dissenting opinion. “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 a 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.
On the more “modern” approach
“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,” Jaklič wrote, then continuing: “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
Jaklič then continued his explanation: “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,” Jaklič was clear.
“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,” Jaklič wrote in his dissenting opinion and in this part, used 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,” Jaklič explained. “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,” he made it clear.
Perhaps there might also be a third way
Jaklič 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,” Jaklič believes, adding: “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,” Jaklič explained. “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.
Petra Janša
