Constitutional Amendments by Popular Initiative: Lessons from Croatia

On 3rd December 2013, the Croatian public voted in support of adding a provision to their constitution which defines marriage as “a union between a man and a woman”.  Croatians effectively voted to constitutionally entrench a ban on gay marriage.  The prohibition of same sex marriage in the constitution is in itself is not particularly unexpected in Croatia, with a whole host of eastern European nations failing to recognise the marriage of same sex couples.  What is perhaps more surprising is the means by which it occurred.

Following the 2011 election, the new coalition government in Croatia announced their intention to expand the rights of same sex couples.  In a country where approximately 90% of the population consider themselves to be Catholic, this decision was not well received by many religious groups.  The response by Catholic group “In the Name of the Family” was to launch a public initiative to propose the constitutional entrenchment of the definition of marriage as being between a man and a woman.  An overwhelming 750,000 citizens signed the petition calling for a referendum on the matter, almost 20% of all eligible voters in the country.   As per Croatia’s Constitution, Parliament is obliged to call a referendum when requested by 10% of the total electorate.  So whilst the President and Prime Minister of Croatia both fiercely opposed the constitutional amendment, the 10% threshold was surpassed and the referendum went ahead.  Two thirds of those who turned out voted in favour, and subsequently the government was forced to announce that the prohibition of same sex marriage in the constitution would go ahead.

Prior to the referendum taking place, Croatia already had a legal definition of marriage.  Article 5 of the Family Act 2003 states “Marriage is a legally regulated community of a man and a woman.”   So why the need for a constitutional definition?  The reasoning behind defining marriage not only by law, but also in the country’s higher law, was to ensure that the definition of marriage became particularly difficult to change.  To amend the constitution, a two thirds majority vote in Parliament is required.  This is no mean feat, particularly with regard to controversial or divisive subject matters.   With 13 parties currently represented in the Croatian Parliament, a supermajority becomes impossible without significant cross-party consensus.  Thus defining marriage in the constitution had the purpose not only of limiting the rights of same sex couples, but also of ensuring that this limitation persists long into the future.

What makes this sequence of events in Croatia particularly noteworthy is that the change to the constitution was initiated not by the countries’ elected legislators, but by the public at large.  There was such definitive popular support that the government has been forced into making a constitutional amendment that it doesn’t want to make.  It could be argued that this is a sign of a healthy democracy, with decision making in the hands of the wider population.  In this instance however, the wider population is a largely Catholic, heterosexual majority group.  By voting to discriminate against the minority gay and lesbian segment of society, this bears more resemblance to a tyranny of the majority, than a healthy democratic practice.

The violation of the rights of a minority group is a dangerous precedent to set.  This is clearly a concern for the Croatian government, who have responded by proposing an amendment to the constitutional provision that allows for popular initiatives to incite referenda on issues of constitutional change.  The proposed amendment calls for a restriction on the issue areas which can be brought before a referendum, with the aim of prohibiting any future referenda on issues of fundamental rights and freedoms.

The Croatian government is right to have serious concerns about the use of referenda when it comes to issues of minority rights.  A second popular initiative has since been launched in Croatia, this time collecting signatures in support of limiting the rights of the Serbian minority’s use of their own alphabet.  Yet the governments’ response to alter the constitutional amendment procedure is in itself a questionable strategy.  Constitutions by design lay down the fundamental principles of a state.   By entrenching such principles in a constitutional text, the idea is to firmly embed them, making them very difficult for any governing body to change for their own advantage.  Amendment procedures are therefore vital for the protection of the underlying constitutional principles, and are generally considered to have a somewhat unassailable status.  Thus, a government proposed amendment to the constitutional amendment procedure, could in itself be considered an abuse of power.

In this instance the government’s intentions appear to be admirable in the respect that they are seeking to protect minority groups from future abuses, but if the current government can change the constitutional amendment provision with relative ease, what is to stop future governments from doing the same but with less admirable intentions.  Hypothetically, a power hungry President could decide to reduce the majority required in Parliament to pass constitutional amendments, which in turn could lead to the easier passage of further amendment bills for means such as increasing presidential powers and removing term limits, seriously threatening existing democratic structures.

The events in Croatia perhaps demonstrate a flaw in the original design of the Croatian constitution.  The provision that allows for the supposedly democratic tool, the public initiative, to incite unrestricted constitutional change, seems particularly ill-informed in a country with a substantial Serbian minority group and a history of ethnic tensions.  It appears only logical that provisions are put in place to restrict the use of public initiatives and popular votes, with the aim of preventing minority rights abuses resulting from the prejudices of a majority group.  What is problematic with this approach is that to enforce such provisions, a change to the constitutional amendment rules is required.   This sets a dangerous standard whereby changing these rules becomes acceptable, and future abuses of this power become possible.  To counteract this threat, the government may be wise to consider proposing a second constitutional change, this time setting out strict rules and regulations which restrict the ability of future governments from making any further changes to the amendment rules.  To protect both human rights and to safeguard democracy, there may be a need to first change the constitutional amendment procedure, and then take steps to prevent it from being changed again.

Same Sex Marriage: Divorce for Church and State?

Triggered by the Church of England’s response to a government consultation on same sex marriage, there has been speculation whether ‘disestablishment’ will ensue.

Much of the comment has taken a perfervid, hyperbolic tone as in ‘Gay marriage plan could divorce Church from State’ and ‘The Church of England faces its biggest rupture with the State in 500 years…’ (Times 12 June 2012.) An MP has called for disestablishment (Douglas Carswell, Evening Standard 13 June), and The Observer argues that the Church ‘cannot stand against the settled will of England and remain the national church’ (17 June). What follows tries to offer some perspective on this controversy and its implications.

The same sex marriage proposals

These were contained in a Government Equalities Office consultation document ‘Equal Civil Marriage’, published in March and seeking responses by 15 June 2012. The document asked for responses on the principle of same sex marriage but was mostly concerned to seek views on its modalities. It insisted that there was no question of forcing religious organisations to participate in such marriages. On the contrary, the marriages would be available solely via civil ceremonies (paragraph 1.7).

The Church of England’s response (12 June 2012)

In its thirteen page response, the Church reiterated its opposition to the principle of same sex marriage for the following main reasons:

  • It would alter the intrinsic nature of marriage as the union of a man and a woman
  • The proposals were wrongly based on the notion that civil and religious marriages were two separate categories of marriage when they were merely different ceremonies through which an indivisible single status was attained
  • Civil partnerships already provided adequate remedy and there was no need to permit same sex marriage as well
  • The change could not be confined to civil ceremonies because extension to religious ceremonies would in practice become compulsory.

The response also made a number of other points about the social importance of heterosexual marriage and how its status should not be impaired:

Because we believe that the inherited understanding of marriage contributes a vast amount to the common good, our defence of that understanding is motivated by a concern for the good of all in society…The distinctiveness and complementarity are seen most explicitly in the biological union of man and woman which potentially brings to the relationship the fruitfulness of procreation. (paras 5 and 10)

Finally, an annex longer than the formal response rehearsed the Church of England’s legal status and capacity in marriage law and developed its major objections. In particular, it argued that the operation of the European Convention on Human Rights (ECHR) as understood through the jurisprudence of the European Court of Human Rights (ECtHR) would be bound to force religious bodies to offer same sex marriage ceremonies.

Reception of the Church of England’s response

The reception has been bemused where not hostile. ‘Gay’ people themselves do not speak with one voice, some not wishing to insist that marriage be permitted though most possibly favouring it being made available even if they do not wish to take advantage of such a change themselves. Survey evidence suggests strong 70 percent public support for the change. The burden of published legal opinion considers the arguments from the ECHR mistaken where not specious.

Context

The Church’s response arises partly from its continuing internal differences on gender and sexuality issues. Female ordination has not conferred equality of status with male clergy and there is continued opposition both to the appointment of female bishops and, if appointed, their equality with male bishops. Homosexuality is still abhorred and its open practice amongst clergy formally banned. Gender and sexuality controversies in the Anglican Communion outside England continue to threaten schism. In this situation, it would be impossible for the Church officially to welcome same sex marriage – though the Church’s consultation response claims that its objections are independent of such considerations and stand on their own merits (para 4).

Disestablishment?

‘Disestablishment’ commonly means that all the Church’s relations with the State – including with the monarchy – would be abolished. This usage assumes that ‘establishment’ itself is a complete, wholly self-consistent and coherent package. In fact it is not. Rather, what now exists is the disaggregated residue of the historical position where the Church was, through the parochial system, the State’s principal partner in the civil government of a confessional state.

It is difficult to see how same sex marriage could threaten the remaining establishment as a whole. At most, if the Church persisted in its objections and wished to be sure to avoid having to conduct such marriages, then it might withdraw from conducting any marriages. However, that would presumably be incompatible with the value that the Church ascribes to marriage. In addition, it does not seem that withdrawal would be necessary because the Church has not been convincing that the ECHR would indeed have the effects it has claimed. Indeed, its response’s pedantic attack on the consultation document’s alleged misunderstanding of religious as opposed to civil marriage looks very like defensive obfuscation.

The future of establishment

While same sex marriage by itself does not seem a credible threat to Church of England establishment, there are other reasons why establishment should be reconsidered. These include the pluralisation of religious belief, the growth of unbelief (fifty per cent of the population now say they belong to no religion), and the difficulty of maintaining aspirations of equality where an important institution has unique privileges. We may have religious freedom in the UK, but we do not have religious equality. Although the monarch remains the Supreme Governor of the Church of England, that title is devoid of any substance and the Church is nowadays essentially autonomous. A private Church committee will choose the next Archbishop of Canterbury, not the Prime Minister or the Queen.

To mitigate the constitution’s hostility to Roman Catholicism, the government is committed – with the fifteen other realms where the Queen is head of state – to removing the law that prohibits succession to the throne if married to a Catholic. While a desirable change, it draws attention to the persistence of the remaining anti-Catholic provisions: no Catholic can become monarch and all monarchs have to be in communion with the Church of England – which rules out not only Catholics again but anyone not a Protestant trinitarian Christian.

Would it matter if a Catholic was monarch even if the title of Supreme Governor were retained? Would further change injure the monarchy in a situation where no-one believes that monarchs are really chosen by God? Perhaps the monarchy at least might be separated from any compulsory relationship with the Church whose role the Queen now describes – a new claim – as to be to protect the religious freedom of other religions. The Church could remain a national body in England if it wished. It could continue to carry out public rituals deemed to have the sort of content that all may recognise as socially sacred without necessarily buying into organised religion itself. However, apart from drawing attention to the case for change, disagreements over same sex marriage will not drive any larger change by themselves.

R. M. (Bob) Morris

Honorary Senior Research Fellow

Further information: