A Constitutional Ban on Same-sex Marriage: Romania is About to Entrench its Homophobic Worldview

by Michael Hein, Postdoc Fellow, University of Göttingen, Alexander von Humboldt Chair of Comparative Constitutionalism

Next weekend, on the 6th and 7th of October, 2018, the citizens of Romania will have the final say on an amendment to the Romanian Constitution of 1991. If approved, it will change Art. 48, para. 1, which defines the family as “based on a freely consented marriage by the spouses”. According to the draft amendment, the word “spouses” is to be replaced by “a man and a woman”, which would result in a constitutional ban on same-sex marriage. In the short run, this modification would not change the legal situation of homosexual couples, since Romania has not yet introduced either same-sex marriage or any kind of civil partnership. In the long run, however, it would make any potential future attempts to introduce same-sex marriage much more unlikely to succeed, because this would require a new amendment of the quite rigid constitution.
According to Art. 147 of the Romanian Constitution, a draft amendment has to be adopted by a two-thirds majority in both parliamentary chambers—the Chamber of Deputies and the Senate—or by a three-fourths majority of all parliamentarians in a joint session. Subsequently, the amendment law has to be approved in a national referendum. In order to be valid, the referendum law requires a minimum turnout of 30%, and a “yes” vote from at least 25% of all eligible voters. The Constitutional Court has to review the constitutionality of any amendment proposal twice: once before it gets to the parliamentary debate and again before it is submitted for the referendum (Art. 146, lit. a and l).
Thus, it is not surprising that since the enactment of the Constitution in 1991, only one amendment has been adopted so far: a thorough constitutional reform during the EU accession process in 2003. Although the adoption of an amendment thus proves elusive, the initiation is not restricted to institutional political actors but also open to the citizens. A draft amendment can be proposed by a quorum of 500,000 eligible voters, who have to represent at least half of Romania’s counties with a minimum of 20,000 signatures from each county (Art. 146).
This method was used by the “Coalition for Family” (“Coaliția pentru Familie”), a conservative association of about 30 Romanian non-governmental organizations found in 2015. The association defines its mission as “to protect and support the family based on the marriage between a man and a woman […] from the modern society’s tendencies to diminish its importance and accelerate its decline.” During the first months of 2016, the “Coalition for Family” started a public initiative for the above-mentioned amendment of Art. 48 of the Romanian Constitution and gathered the support of more than three million citizens, about one sixth of the 18.4 million registered voters.
There are primarily two reasons for this overwhelming success. First, Romanian society—as many other Southeast European societies—can be described as homophobic. Attitudes towards gays and lesbians are still rather discriminatory; the Romanian Orthodox Church supports intolerance towards lesbian, gay, bisexual, transgender, and intersex people (LGBTI), and the members of this community face a comparatively high level of homophobic violence. Second, the amendment initiative has been backed by a vast majority of the political elite: not only the ruling Social Democratic Party (PSD) and the Alliance of Liberals and Democrats (ALDE) but also most oppositional parties in the parliament. Only the Save Romania Union (USR) and Romania’s liberal President Klaus Iohannis have opposed the amendment. The relationship between Iohannis and the center-left government, whose de facto leader is the PSD chairman Liviu Dragnea, has been very conflictual, particularly with regard to the successful anti-corruption policies that Dragnea openly aims to reverse. The PSD leader was himself convicted for electoral fraud in 2016 and incitement to abuse of office in 2018, the latter still pending appeal. Thus, Dragnea used the constitutional amendment initiative as welcome ammunition in his ongoing rivalry with Iohannis.
This also explains why the amendment procedure was postponed several times by PSD and ALDE in order to keep the public debate on that issue running. After the amendment initiative was officially submitted to the parliament on May 23, 2016 and accepted by the Constitutional Court, about one year elapsed before the Chamber of Deputies overwhelmingly adopted the amendment by a 232-to-22 majority (with 13 abstentions) on May 9, 2017. After that, the Senate needed almost 16 more months until it finally voted on the amendment on September 11, 2018. Like the deputies, the senators also backed the amendment with a vast majority of 107 affirmative to 13 negative votes (with seven abstentions). The Constitutional Court again approved the constitutionality of the draft amendment.
Based on the broad social and political support for the amendment, and given the fact that the government has extended the referendum to two days instead of one, the adoption of the constitutional amendment is very likely. According to a representative survey conducted in April this year, 77% of the respondents agree with the amendment proposal, whereas only 17% oppose it. In addition, about three-fourths of the respondents declared their certain (55%) or at least likely (20%) intention to take part in the referendum.
The Romanian development follows a recent regionally split pattern in Europe: Most Western and Northern European countries have introduced same-sex marriage—from the Netherlands in 2001 to Austria (coming into effect in 2019). Many Central and Southern European states, such as the Czech Republic, Greece, Italy or Switzerland, have at least introduced civil partnership during previous years. In contrast, Post-socialist Eastern and Southeastern Europe has followed the opposite track. Most countries in this region have not introduced any form of recognition for same-sex couples, and some have even changed their constitutions in order to prohibit any attempts to introduce same-sex marriage by statutory law. Following Latvia (2006), Serbia (2006) and Croatia (2014), Romania would be the fourth state to take this step.
Against this background, it is somewhat surprising that PSD leader Liviu Dragnea announced in March this year his support for having a debate on introducing civil partnership. This move might be interpreted in the context of a case presented before the European Court of Justice (ECJ; Coman and Others v Inspectoratul General pentru Imigrări and Ministerul Afacerilor Interne). A Romanian-US gay couple, who got married in Belgium, were denied a residence permit on the ground that same-sex marriage is not recognized in Romania. In its ruling, issued on June 5, 2018, the ECJ decided that same-sex couples married in an EU member state, if at least one of the partners is an EU citizen, have residency rights in all member states according to EU law, even if the country of residence does not recognize same-sex marriage.
As a consequence of this judgment, the Romanian Constitutional Court ruled on July 18, 2018, that banning same-sex marriage and refusing to accept such marriages contracted in a non-EU state is constitutional. However, in the grounds for the judgment, which were published on September 28, the Court states that homosexual couples have equal rights to a private and family life as heterosexual couples. Concretely, Art. 26 of the Romanian Constitution, which obliges the state to “respect and protect private and family life”, includes (unmarried) same-sex couples. This decision restricts the consequences of the expected amendment of Art. 48 of the Constitution and opens up new perspectives for future steps to equate the rights of the LGBTI community in Romania. As of today, two draft bills on civil partnership are pending in the parliament, but it remains to be seen whether they have a real chance of success among Romanian politicians and citizens.

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