JURIST Guest Columnist Tina Orsolic Dalessio of the University of Zagreb Faculty of Law argues that while the passage of a Croatia constitutional referendum defining marriage as a union between a man and a woman breaks with the liberal trend of other EU members, it was made possible by Croatia’s admittance into the EU and will require action by the parliament if it is to be reversed …

The past few years have been marked by a slow, but continuous strengthening of the rights of same-sex couples—under both the European Union (EU) and the Council of Europe’s legal mechanisms. However, in Croatia, the newest EU member state and a signatory to the European Convention on Human Rights, citizens have recently decided not to follow this liberal trend.

On December 1, 2013, a referendum was held in Croatia to constitutionally define marriage as a union between a man and woman. This was the result of a successful petition circulated by a conservative catholic initiative, “In the Name of the Family,” which collected 683,948 signatures in support of holding the referendum. With a population around 4.4 million, this easily satisfied the legal requirement of collecting signatures from 10 percent of the registered voters within two weeks in order to trigger a referendum.

In the referendum, Croatian citizens were asked to decide whether the already existing statutory definition of marriage, as a union between a man and a woman, should now be inserted into the Constitution of the Republic of Croatia [PDF]. Put simply, they were asked to vote on the introduction of a constitutional ban of same-sex marriage. The majority of those who voted, did so in favor.

Ironically, what indirectly facilitated the passage of this referendum was the legal process and strategy Croatia took in becoming a member of the EU.

According to the constitution, a decision concerning the association of the Republic of Croatia into alliances with other states, which would include the EU accession, must be passed by popular referendum. The threshold for the passage of such a referendum used to be set quite high. According to the constitution prior to being amended in 2010, a majority of the total electorate of Croatia was required to vote in favor. In order to ensure Croatia’s entrance into the EU, however, the requirement was significantly weakened by constitutional reform in 2010. Pursuant to the amended constitution, the passage of such a referendum was conditioned merely by a majority vote of those taking part in the referendum.

Since the threshold for determining a question of significant constitutional importance was set so low, it did not make sense to keep a higher requirement for other, garden-variety types of referenda. Pursuant to the constitutional provision on the holding of a referendum on proposals to amend the constitution, a bill or any other issue falling within the Croatian Parliament’s jurisdiction thus also called for amendment. The old requirement for the passage of such a referendum was the majority of the voters who have voted, provided that a majority of the total electorate had taken part in the referendum. Following the 2010 constitutional reforms, the bar for the passage of such was set much lower: a majority vote of the voters taking part in the referendum. The requirements for the passage of a “regular” referendum were thus equated to those for the passage of a referendum on the association of the Republic of Croatia into alliances with other states.

Just as the parliament had hoped for, this weakening of the constitutional referendum requirements enabled a smooth passage of the referendum held prior to Croatia’s joining the EU, thus ensuring its membership in this integration of states. It also, however, enabled the easy passage of the most recent referendum concerning the constitutional definition of marriage. Under the old constitutional standard, this would have been much more difficult, perhaps even impossible given the low turnout. Concretely, the 2013 referendum on the constitutional definition of marriage, or as some like to call it the constitutional ban of gay marriage, was passed by a 65.87 percent majority vote of only 37.90 percent of the eligible voters.

Having realized that the weakened constitutional requirements to pass a referendum could easily become used as a tool for the systemic discrimination of minority groups by the majority, the Croatian government is now proposing yet another constitutional amendment. It is suggesting the adoption of a constitutional ban on regulating minority rights through a referendum.

In the meantime, the government’s “Life Partnership” proposal, the first draft of which was published in November 2013, has entered the legislative process.

The proposed same-sex partnership legislation, if adopted, would grant new rights to same-sex partners and define them as a family. In essence, the Life Partnership Law would equate rights of homosexual partners to those of married heterosexual partners, except in matters of adoption. The institution of marriage, however, would remain reserved for heterosexual couples.

This legislative proposal has nonetheless sparked a new wave of dissatisfaction and criticism by the conservative Catholic group responsible for initiating the referendum on the constitutional definition of marriage. The representatives of the initiative “In the Name of the Family” insist that the purpose of the referendum was not only to preclude same-sex marriage, but also to prevent same-sex partners from enjoying the same rights as married couples. Thus, they see the proposed law as a betrayal of Croatian voters’ trust and have asked the government to reconsider it, which the government has thus far refused to do.

If the adopted, which is likely, “In the Name of the Family” will likely put it up for assessment of constitutionality. In this case, however, the government is likely to be backed by the Croatian Constitutional Court.

In November 2013, the court issued an opinion [PDF] [Croatian] on the constitutionality of the marriage referendum and a request to block it. The court found that there were no constitutional obstacles that could prevent the referendum from taking place. However, the court also held that the potential insertion of a provision defining marriage as a union between a man and a woman into the constitution must not have any impact on further legislative developments of the institute of common law marriage and same-sex union in accordance with the constitutional provision guaranteeing respect for, and legal protection of, each person’s private and family life, as well as human dignity.

The opinion, however, did not play in favor of the most recent complaint lodged before the constitutional court regarding the referendum. On January 9, 2014, the representatives of the Croatian LGBTIQ organization “Zagreb Pride” requested that the court make the final assessment of the constitutionality of the referendum results. This was their third and final attempt at fighting this, as they deem it, “discriminatory referendum.” In the opinion [PDF] [Croatian] issued on January 13, 2014, the Constitutional Court rejected their complaint on admissibility grounds.

It is now up to the parliament to make a final decision regarding the status of same-sex partners in Croatia. This should determine in which direction the country ultimately moves—one step forward, or two steps back.

Tina Orsolic Dalessio is a senior lecturer in legal theory at the University of Zagreb Faculty of Law in Zagreb, Croatia. Dr. Orsolic Dalessio received an LL.B from the University of Zagreb, an LL.M. from the University of Michigan, and a PhD from Maastricht University. Her research interests include legal theory, European law, and constitutional law.

Suggested Citation:Tina Orsolic Dalessio, The Interplay of Direct and Indirect Democracy at Work – Croatia’s Battle Over the Rights of Same-Sex Couples, JURIST – Forum, Jan. 23, 2014, http://jurist.org/forum/2014/01/tina-dalessio-croatia-referendum.php