By: Elena Brodeală
Elena Brodeală holds an LL.M. degree from Yale Law School and is a PhD Researcher in Law at the European University Institute (EUI) in Italy working on issues of equality in Romania. She is a founding member of the Constitutionalism and Politics working group at the EUI and is a Yale Law School’s Robina fellow at the European Court of Human Rights, where she clerks for Judge Keller. Contact: firstname.lastname@example.org or email@example.com
In a recent blog post, I argued, based on the recent failed referendum on the traditional family in Romania, that human rights should not be subject to a popular vote. Similar arguments have been made by commentators observing other countries, such as Australia and Ireland, that have also put the question of same-sex marriage to a popular vote. A broader discussion on the use of referendums on human rights is needed. In this blog post, by putting the Romanian example in conversation with comparative law material, I want to bring into discussion further arguments on why referendums on human rights are a bad idea.
The Romanian referendum took place after a group of conservative NGOs, known as “the Coalition for Family” (Coaliția pentru Familie, CpF), managed to launch the first successful citizens’ initiative to review the Romanian Constitution and define marriage as the union between a man and a woman. The initiative was meant to prevent the legalization of same-sex marriage and preserve the traditional gender roles within Romanian families. CpF managed to gather, with the support of the majoritarian Orthodox Church, around 2.7 million signatures in favor of this initiative. The initiative passed all requirements for validity, including two constitutionality checks by the Romanian Constitutional Court (RCC) and a vote of 2/3 of all members of the Parliament and was finally put to a referendum on October 6 and 7, 2018. Although different statistics showed serious animosity towards LGBT people and strong support for the traditional gender roles, the referendum failed as the 30% turnout that was a condition for its validity was not met. The turnout was only 21.10%, although 91.56% of those who went to vote were in favor of the constitutional change. Even if the failure of the referendum was welcomed by those supporting equality for all, the Romanian referendum stands as an example of why issues that touch upon LGBT rights, and human rights more broadly, should not be subject to a popular vote.
The purpose of referendums is to strengthen democracy. Yet, democracy is not only about having a say in the decisions of the State, but also about ensuring that all members of society have equal rights, or at least that their prospects of emancipation are not curtailed. Minorities, in particular, are extremely vulnerable to decisions made by a referendum, as by its nature a referendum is about the will of the majority. Groups that hold rights that are unpopular in a certain society, like women’s right to abortion, are also particularly vulnerable.
Since it is the essence of democracy to protect minorities from the “tyranny of majorities” and ensure that rights are protected regardless of how popular they are, human rights should be excluded from the topics that can be put to a referendum. At times, courts alone are better positioned to decide on such matters. For example, few Americans would dispute today that interracial marriage should be legal. However, if the issue of interracial marriages had been put to a referendum in 1967, when the US Supreme Court legalized such marriages in the famous case Loving v. Virginia, this would have probably been unsuccessful.
Additionally, the Constitution, and the law more generally, should not always mirror the views or values of a society. A Constitution, for example, can and at times should entail provisions that although unpopular or not descriptive of the state of a society at a certain period in history, are meant to stand as aspirational goals. For instance, Catherine MacKinnon in her study on gender and constitutions around the world found that the less unequal a country is, the more guarantees of equality it has in its constitutional text.This suggests that these guarantees are not a sign of people’s support for equality, but are rather meant to set equality as a long-term goal for a certain society.
It is true that referendums can at times advance human rights. This was the case in Ireland and Australia where same-sex marriage was legalized through a popular vote. Yet, such referendums are celebrated only because their outcome favored LGBT rights. In reality, as a commentator on the Irish case has put it, such referendums did nothing but set “a dangerous precedent” for more conservative countries like Romania.
Romania was the last country in the EU to decriminalize homosexuality in 2001 and it only did so at the pressure of EU accession. Furthermore, Romania’s 2009 Civil Code prohibited same-sex marriage, and Romania is ranked among the most homophobic countries in the EU. Defining marriage as between a man and a woman in the constitutional text was meant to prevent the legalization of same-sex marriage and ensure that any future claims for LGBTQ+ equality would not be successful. Given the serious level of homophobia in Romania, it was an easy guess that, if put to a referendum, the majority of Romanians would support the traditional family.
The referendum’s failure was not caused by Romanians’ support for equal rights, but by other factors. There was the antipathy towards the ruling Social Democratic Party that tried to use this referendum to derail people’s attention from its attempts to weaken the country’s anti-corruption framework. Related to this, there was the lack of trust in the Government that organized the referendum and in the state institutions more broadly. More precisely, as bizarre as it might sound, many people did not go to vote due to the way the question was formulated on the ballot paper. In accordance to the relevant legal provisions, the people were asked whether they “agree with the law for reviewing the Romanian Constitution in the form adopted by the Parliament.” Since the question did not specifically refer to the definition of family in the Constitution, many saw answering such a question like signing a blank check and allowing the Parliament to do any changes it wants. Another factor was the fact that the referendum was seen as anti-EU (given that the main advances on LGBT rights in Romania were made under EU pressure). To these one can add the desire for a strict separation between religion and politics, the fact that many perceived the referendum as being useless and expensive or the fact that Romanians did not think that the traditional family was in any danger (considering that the Civil Code already banned same-sex marriage and there haven’t been any attempts to legalize same-sex marriage in Romania). Thus, the Romanian case shows how easy it is for the result of a referendum to depend on other considerations than the question under debate. If we are to take human rights seriously, then their protection should not be left to chance, but should be decided based on serious debates and careful consideration of the arguments on all sides, for which courts especially, but also legislatures, are better placed.
Another problem regarding putting issues as sensitive as LGBT rights to a popular vote is that the pre-referendum campaign might fuel serious homophobic behaviors and might hurt citizens with another sexual orientation. For instance, over the campaign for the Romanian referendum, human rights groups have reported an increase in hate speech against LGBTQ+people. Among the factors that might account for such an increase is the fact that the Romanian referendum was supported by ADF International (ADF) and Liberty Council (LC), two American hate speech groups (see here and here). In particular, LC sent an amicus brief to the RCC arguing that “engaging in homosexual conduct is dangerous,” and that same-sex unions harm society “by creating irresponsible and unhealthy people.” LC also brought Kim Davis (the Kentucky clerk who refused to grant marriage licenses to same-sex couples after the US Supreme Court decided the Obergefell case) to Romania to warn locals about the dangers that same-sex marriage poses to their nation, their children, and to the freedom of religion. Her attorney, an American of Romanian origin, also alerted Romanians that legalizing same-sex marriages would bring the country back to Communist times when people like Kim Davis were imprisoned for their conscience (see also here). Such public crusade against LGBT people inevitably has serious effects on their mental health, and general wellbeing.
While there are many arguments on why future referendums similar to the one in Romania should not be organized, a dilemma remains from the Romanian case. Before being put to a referendum, the citizens’ initiative was approved by both the Constitutional Court and the legislature. It is clear that when they decided their position on the initiative, the political parties represented in the Parliament were influenced by people’s attitudes towards the LGBTQ+ community. However, it is not equally clear to what extent the decisions of the RCC were influenced by the broader social animosity towards homosexuality too. And if the RCC was not influenced by the attitudes of the broader public, who should decide on human rights when all national forums (the people, the courts, and the legislature) agree on curtailing their protection? Should this be perhaps delegated to supra-national bodies?
Catharine A. MacKinnon, Gender in Constitutions, in The Oxford Handbook of Comparative Constitutional Law 397, 402 (Michel Rosenfeld & Andras Sajo eds., 2012).