Abstract
In February 2015, Slovakia held a referendum ʻfor the protection of the traditional family.ʼ It was indirectly aimed against the potential legalization of same-sex marriages or civil unions. Owing to the initiative of the Slovak President, the Constitutional Court of the Slovak Republic (CCSR) reviewed four proposed referendum questions, while one of them was later declared unconstitutional. I attempt to point out the flaws in the CCSR’s judgment while looking for an argumentation in favour of the recognition of same-sex marriages/civil unions. I argue that Slovak constitutional law provides several principles for such recognition, which include: civic equality, similarity, equal access, democratic state, and the right to privacy. These principles are compared with the recent ground-breaking judgments of the US Supreme Court and the European Court of Human Rights. Finally, I briefly scrutinise the objection that recognising a right for same-sex unions means excessive judicial activism and judicializes politics.
Highlights
As it is even not too difficult to find biblical verses apparently referring to homosexual feelings – as illustrated above in the words of David to his beloved friend Jonathan1 – neither is it difficult to identify some shifts in the legislation related to certain kinds of civil unions between same-sex persons in some countries which are deemed to have a strong Christian tradition. This is the case, for example, in the USA which is considered to be a country with deep Protestant roots, where the Supreme Court found same-sex marriages to be constitutional in 2015.2 This may concern Italy, one of the most Catholic-devoted states, which by virtue of a decision of the European Court of Human Rights was compelled to democratically adopt legislation allowing civil unions or registered partnerships for both same-sex couples and opposite-sex ones, in order to prevent discrimination on the basis of sex.[3]
The Court relied on the case law of the ECtHR, according to which each state has room to take a stance on the issue of marriages between persons of the same sex. This has been reiterated in the case of Oliari in 2015 by claiming that governments are not obliged to grant same-sex couples access to marriage, and it depends on their own free discretion what kind of legal form they will provide for same-sex persons.[125]
The CCSR, referring to the European Convention on Human Rights, left open the issue of the legalization of same-sex unions and reiterated that the respective states are not obliged to allow same-sex marriages and have a wide spectrum of possibilities as to what kind of benefits, privileges and legal consequences they will ascribe to potential civil unions or registered partnerships
Summary
As it is even not too difficult to find biblical verses apparently referring to homosexual feelings – as illustrated above in the words of David to his beloved friend Jonathan1 – neither is it difficult to identify some shifts in the legislation related to certain kinds of civil unions between same-sex persons in some countries which are deemed to have a strong Christian tradition This is the case, for example, in the USA which is considered to be a country with deep Protestant roots, where the Supreme Court (hereinafter, USSC) found same-sex marriages to be constitutional in 2015.2 This may concern Italy, one of the most Catholic-devoted states, which by virtue of a decision of the European Court of Human Rights (hereinafter, ECtHR) was compelled to democratically adopt legislation allowing civil unions or registered partnerships for both same-sex couples and opposite-sex ones, in order to prevent discrimination on the basis of sex.[3] Some older examples are. My aim here is to make such an attempt and to plunge into the debate on the justification of same-sex marriages/ civil unions and to argue from non-neutral positions
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