Annabelle Huet looks at the motivations and wider implications of European constitutions which seek to ban gay marriage.

On June 4^th 2014, Slovakia became the twelfth country in Europe to enshrine an indirect ban on same-sex unions in its constitution. With the required two-thirds majority, the constitution was amended to redefine marriage as the “unique bond between a man and a woman”, thereby implicitly excluding same-sex couples from the right to marry.  This is not an isolated case in Eastern Europe, and certainly not in the world.

In December last year, Croatia entrenched a similarly restrictive definition of marriage in its constitution by popular initiative. In the same way, Romania saw a series of debates in 2013 centre on redefining marriage in both the country’s legislation and Constitution. The Constitution was not amended in the end, and after pressure from LGBT groups, neither was the law, but on the other hand, a bill introducing same-sex civil partnerships was defeated in March this year.

Only five countries in the world explicitly ban same-sex unions in their constitutions: Burundi, Honduras, Seychelles, Uganda and Zimbabwe. However, a vast majority of countries define marriage as a union between a man and a woman only, essentially restricting the right to marry to heterosexuals. Within the European Union for instance, the constitutions of Latvia, Lithuania, Poland, Hungary and Bulgaria define marriage in such a way.

What explains this insistence on constitutionalising limits to the right to marry? And why does it seem to exist in Eastern Europe specifically? Religion plays an essential role, as was can be seen in Croatia for instance, and Romania. It is estimated that approximately 85% of Croatians are Roman Catholic and 86% of Romanians are Orthodox. Both Churches strongly oppose same-sex unions and with 65% of Croatians that voted in favour of a constitutional ban in last year’s referendum and only 11% of Romanians that support gay marriage, the lowest percentage in the EU, it seems that those countries’ populations endorse their Churches’ stance.

Nevertheless, religion is not the only explanation. In Slovakia’s case it seems to be more the result of political bargaining than anything else. The ruling Liberal Democrats (SMER) party had been anxious to press ahead with judicial reform for a while but feared opposition from the Christian-Democrats (KDH). Concerns about the constitutional amendment being a backroom deal and lacking in transparency surfaced in the media and civil society.

Constitutionalising restrictions on the right to marry is problematic. One of the characteristics of modern constitutions is the inclusion of rights. Since 1791, rights have spread to the point where a constitution without a bill of rights is practically unthinkable. Restricting rights is arguably counter-intuitive in modern constitutions and goes against a growing case-law at EU and Council of Europe level of recognising LGBT rights, spear-headed by the EU’s Equal Treatment Framework Directive 2000/78/EC.

In Slovakia, LGBT rights might seem like a small sacrifice to pay for judicial reform, but bargaining minority rights is a dangerous precedent to set for future political negotiations between the ruling party (SMER) and the opposition (KDH) with two more years left to go before the next parliamentary elections. This is even more true when it entails an amendment to the Constitution and entrenching a restriction that will necessarily be a lot more difficult to change back in the future. Furthermore, as more and more European countries contemplate constitutional bans on gay marriage, it makes it harder for the EU to present a coherent and unified policy on the matter and champion the rights of the LGBT population in other parts of the world, where such individuals often face violent discrimination.