As mentioned earlier, Croatia has held only three referendums to date. The great majority of Slovenian referendums have been legislative referendums, while all three referendums in Croatia have been constitutional. Slovenian voters demanded seven referendums, while Croatian voters only one — the already much debated referendum on the constitutional definition of marriage.
The number of citizen-initiated referendums is, accordingly, clearly much higher in Slovenia. Evidently, this can be accomplished only by a very strong organisation or association. In Croatia, however, political parties are, as a rule, in the background, while the leading role belongs to trade unions, war veterans associations, religious organisations, etc.
Namely, the leaders of a number of war veterans associations submitted a petition backed by , signatures to the President of the Croatian Parliament, requiring a legislative referendum that was to provide defenders who fought in the Croatian Homeland War the same legal treatment as the treatment granted to members of the winning and liberation armies in World War II. Moreover, in the petition they also asked not to be prosecuted for possible war crimes committed during the Homeland War. However, the parliamentary majority was not inclined to call a referendum on the basis of such a petition, since the then Referendum Act did not provide for the procedure of organising a citizen-initiated referendum and one was necessary to determine the conditions and criteria under which a referendum could be implemented.
Following these three unsuccessful initiatives, Croatian citizens succeeded in collecting the necessary number of signatures on several occasions. The Government quickly withdrew the proposed draft from parliamentary procedure, after which the Parliament refused to call a referendum, claiming that there is no legislation to be decided on.
The question was whether the trade unions would need to collect the signatures again to be able to bring the issue to a referendum.
The decision was severely criticised by centre-left opposition parties Social Democrats and the Labour Party , who claimed that the Court is under the influence of the governing Croatian Democratic Union. In May , the Initiative collected almost , signatures, 43 thereby fulfilling the basic condition to call the first citizen-initiated constitutional referendum in Croatia. Moreover, individual actors both from within the Croatian Parliament and without offered different constitutional interpretations with respect to the treatment and obligation of the state authorities in relation to decision-making and the possible consequences of decisions made by citizens in a constitutional referendum.
Can the process of constitutional change through a referendum be carried out outside and beyond the procedure for changing the Constitution provided for in Chapter IX of the Constitution? Can the Croatian Parliament obstruct in any way the will of the people expressed either by signing a request for a referendum or through voting in a referendum?
Can the people decide in a referendum on issues which many consider to be discriminatory for a certain group of people? Should the Constitutional Court issue an opinion on the constitutionality of referendum questions even if not requested by the Croatian Parliament? These and other contentious issues have become the subject of intense political and scholarly discussion. The opinion of some leading MPs from the governing coalition was that the Parliament could not be forced to call a referendum whose goal is to diminish the rights of same-sex partners, and that the constitution-making power belongs, under the Constitution, solely to the Parliament.
Their joint statement highlights the following:. Any decision made by the citizens in a constitutional referendum would be, by its very nature, constitutional in character, and would be binding on all state bodies. It would represent a change in the Constitution that comes into force upon confirmation that the referendum was held in accordance with the Constitution.
It should be emphasised that the Constitutional Court had intervened several times prior to the calling of the referendum warning the Parliament to respect the Constitution not only in its obligation to call a citizen-initiated referendum, but also in respecting the results of the referendum vote as an act of the constituent power of the people to change the Constitution. With a relatively modest turnout of More specifically, they intended to change minority language rights in the sense that a minority language can be granted only in local self-government units where at least half of the population is from an ethnic minority.
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Under the current legislation in Croatia, national minorities must comprise at least one-third of the population to claim these rights. The problem with the minority language rights escalated with the instalment of bilingual public signs in Vukovar, where, according to the last census, the Serbian minority constitutes more than one-third of the total population. In essence, the consensus reached by constitutional scholars was that the legislative referendum should remain an instrument in the hands of citizens alone, and should no longer be available to the parliamentary opposition or the second house as a means of undermining not only the Government of the day, but also the parliamentary system as a whole.
They also agreed, in principle, that some issues are not suitable to be decided in a referendum, but could not agree on the precise formulation of those issues. Finally , there were significant differences of opinion as to the issue whether a specific type of quorum for the validity of referendum decisions should be designed. This moment finally arrived with the severe economic and financial crisis in Slovenia which had been created partly by many referendum decisions. These were, in my opinion, the crucial preconditions for setting the stage for a successful constitutional reform.
The amendments were adopted consensually following a prolonged public debate, with Slovenian constitutional scholars in a supporting role. This part of the reform was the sine qua non of any meaningful reform of the legislative referendum, and it was the least controversial for all the actors involved in the constitution-making process except, of course, the second house — the National Council. The accepted solution was elaborated as a consistent application of the principle that only voters should have the right to require a referendum, because they do not participate directly in the law-making process.
In the future, popular votes will be banned on legislation on urgent measures to ensure the defence of the state, security, or the elimination of the consequences of natural disasters, on legislation on taxes, customs duties and other compulsory charges, on acts adopting the state budget, on acts ratifying treaties, and on acts eliminating unconstitutionalities in the field of human rights and fundamental freedoms or any other unconstitutionality.
The most controversial aspect of these bans was the exclusion of financial issues from the referendum vote.
The original formulation in the draft proposal had been even more restrictive than the one adopted. This decision has been strongly objected to by the majority of constitutional scholars involved in the Expert Group. There have been three initiatives in this regard to date and all of them unsuccessful. The first came in the process of amending the Constitution in The then opposition parties i. The Social Democrats also proposed that some issues be excluded from the referendum vote: matters diminishing the constitutionally defined human rights , fundamental freedoms and equality, and the protection of minority rights , as well as proposals relating to the tax system and the state budget.
Labour party MPs the most referendum-friendly party in recent years and other opposition party MPs mainly representatives of the Croatian Democratic Union proposed lowering the number of signatures required to call citizen-initiated referendums to , He publicly signed the request for a referendum on the amendments to the Labour Act, and formally proposed lowering the number of signatures required for citizen-initiated referendums to , The initiative to amend the Constitution had been launched by MPs from the governing Social Democrats several months earlier with a draft of constitutional amendments, according to which there would be no statute of limitations for politically motivated killings.
However, the parliamentary majority needed the support of some smaller opposition parties to achieve the two-thirds majority necessary for amending the Constitution, because the main opposition party — the Croatian Democratic Union — was unwilling to support the proposed constitutional amendment. One of the opposition parties i. This part of the proposal was acceptable to all actors involved in the process of amending the Constitution. This proposal had, from the point of view of constitutional design of the citizen-initiated referendum, two errors, as was emphasised by Professor Branko Smerdel:.
First, the list of situations on which a citizen-initiated referendum would be banned is too extensive and undefined. By citing whole chapters of the Constitution instead of specific provisions, half of the Constitution is under ban. If such a proposal were to be accepted, almost any referendum would become impossible. With such a solution, the right to call a referendum is practically abrogated. Secondly, it is not defined who decides whether some specific referendum issue belongs to the list of banned matters. I think this is not an accidental, but a deliberate attempt to eliminate the Constitutional Court.
On the very eve of the parliamentary vote, the Croatian Democratic Alliance of Slavonia and Baranja HDSSB demanded a postponement and asked for an extension of the public debate on some of the amendments proposed. Why HDSSB changed its mind is not clear — one of the possible reasons could be that this party was the only rightist party in the Parliament to support the amendments initiated by a centre-left government. At the beginning of , there were some signs that the debate on constitutional amendments could be reopened, but the constitution-making moment had already passed.
Another shortcoming in both countries was a lack of some form of participation or approval quorum which would prevent referendum decisions supported by a small minority of interested voters. In Croatia, constitutional problems were brought into the public eye due especially to a popular constitutional initiative and the issue dealt with in the very first constitutional referendum definition of marriage in Croatia. The citizens of both countries demanded a referendum looking to proscribe same-sex marriages — in Slovenia it was against the Marriage and Family Relations Act in , and in Croatia it was for the constitutional definition of marriage as a union of woman and man in Also, the legislative regulation of labour relations was a referendum issue in both countries.
Of course, the serious economic and social crisis that struck Slovenia was also instrumental in bringing together the relevant parties to accept the necessary constitutional amendments. The fact is that these attempts were made in , and only in response to some successful initiatives, and because the issues that these successful initiatives brought into the public eye became much more serious once all quorums prescribed for the validity of referendum decisions were eliminated in Unlike Slovenia, the major parties in Croatia i.
However, when it suited them, the said parties did support these initiatives indirectly. An additional problem in Croatia is that the Constitutional Court is not perceived by all parties as a neutral umpire, especially when dealing with citizen-initiated referendums. Regulation of the institute of citizen-initiated referendum was only one of them. From the very onset, the process was a hostage of political trade-offs, and the two major parties were on opposite sides during this process.
The process of amending the Constitution was extremely short and mostly secret, without a serious public debate and with almost no formal participation by Croatian constitutionalists. Their opinion was, from the beginning, that the Parliament should establish an Expert Group of professors of constitutional law who would prepare a draft of amendments related to the issues of citizen-initiated referendum and other issues within the scope of the proposed constitutional changes , as had earlier been done by the Slovenian National Assembly.
This suggestion was never accepted, although such expert groups of constitutional lawyers had been appointed in by the President of the Republic and in by the Government to prepare draft amendments, and in both cases these groups formulated drafts which were later, with only small modifications introduced, passed by the Parliament in and Cambridge: Cambridge University Press. Democratization 20 4. Anti-minority referendum in Croatia to go to the Constitutional Court for review.
The Constitutional Dimensions of the Same-Sex Marriage Debate
Pravna praksa 32 1. Delo 19 December Representative Democracy. Aldershot: Ashgate. Washington D. Constitutional Court decides against referendum on labour law. Croatian Times. Croatia backs up from monetization of highways. Global Post. Deputy PM regrets halting of reform by anti-outsourcing initiative. Bruno S. Frey , Direct Democracy for Transition Countries.
Journal of Institutional Innovation, Development and Transition 7 Houndmills: Macmillan Press. Ronald J. Matt Qvortrup. Basingstoke: Palgrave Macmillan. Zbornik znanstvenih razprav 74 Pomen ustavnosti in ustavna demokracija Significance of Constitutionality and Constitutional Democracy. Ljubljana: Faculty of Law of the University of Ljubljana. Basingstoke : Palgrave Macmillan. Oxford: Oxford University Press. Informator Zagreb: Hrvatska udruga za ustavno pravo. Manchester: Manchester University Press.
Matt Qvortrup , Direct Democracy: A comparative study of the theory and practice of government by the people. Matt Qvortrup Ed. Mladina 21 December Dnevikov objektiv. Jutarnji list , 27 January , The Constitution of the Republic of Croatia. Because standing is a jurisdictional requirement—meaning that the Court has no constitutional authority to consider a case in which the parties lack standing—the Court has an independent obligation to address the issue, even if the parties do not wish to do so. Although individual Members of Congress normally do not have any more standing to challenge the constitutionality of statutes with which they disagree than do ordinary citizens, a group such as the Bipartisan Legal Advisory Group—authorized by the legislature itself—does.
In Karcher v. May,  the Supreme Court confronted that issue directly. It held that individual New Jersey legislators who had lost their leadership positions no longer had standing to pursue an appeal to the Supreme Court on behalf of the legislature , but by allowing the lower court decisions to stand rather than vacating them, the Court confirmed that the legislators, during the time that they were authorized to speak for the legislature, did have standing to defend a statute that the attorney general of the state had refused to defend.
BLAG stands in exactly the same position as those New Jersey legislators did before they lost their leadership positions, and it therefore has standing to press the appeal on behalf of Congress. If the Court lost jurisdiction to hear a constitutional challenge to an act of Congress merely because the Attorney General of the United States refused to defend the statute, the lawmaking authority of Congress would be severely undermined. In particular, a law such as DOMA, which was adopted by overwhelming bipartisan majorities in both houses of Congress 85 to 14 in the Senate, to 67 in the House of Representatives and signed by a prior President in this case, President Bill Clinton , could be struck down as unconstitutional by executive branch action alone.
Standing in the Proposition 8 case is a closer question. In Arizonans for Official English v. Arizona,  the Supreme Court dismissed a case involving a challenge to an Arizona ballot initiative that made English the official language of the state. The suit had been brought by a government employee who claimed that the initiative would affect how she performed her job, but because she was no longer working for the government by the time the case arrived in the Supreme Court, the Court dismissed the case as moot.
Hollingsworth , however, is different because California initiative proponents do have special authority under California law. Responding to a certification request from the Ninth Circuit,  the California Supreme Court expressly held that:. The proponents of Proposition 8 should therefore have standing to press their appeal. Here, too, one suspects that the Attorney General of California both the former one, now governor, and the current one may be in for a lecture from the Supreme Court for refusing to defend a state law that, as explained below, is nearly identical to one that the Supreme Court upheld in a prior case.
First is whether the laws at issue prohibit the exercise of the fundamental right to marry in violation of the Due Process Clause. Second is whether they treat some people differently because of their sexual orientation in violation of the Equal Protection Clause. As a general matter, the Due Process Clause prohibits the government from infringing a fundamental right unless such is necessary to further a compelling governmental interest. In the case of Loving v. Nothing in the Loving decision suggests that the fundamental right to marry should be extended to other relationships that did not share that unique attribute.
To the contrary, the Court has repeatedly cautioned against the recognition of new fundamental rights lest the Court end up substituting its own judgment for that of the people. In fact, when the very challenge presented by the current cases was first presented to the Supreme Court 40 years ago, just five years after the Loving decision, the Court rejected it.
Baker v. The Minnesota Supreme Court rejected their claim because it found that the right to marry without regard to sex was not a fundamental right and that it was neither irrational nor invidious discrimination to define marriage as it had traditionally been understood. Baker remains good law, binding on the lower courts. The Equal Protection Challenge. Advocates for altering the definition of marriage to include homosexual relationships contend that denying same-sex couples the same access to the institution of marriage that is available to opposite-sex couples is a violation of Equal Protection.
Loving involved a racial classification, however, not one grounded on sexual orientation. The Threshold Inquiry. A threshold inquiry further serves to distinguish Loving from the same-sex marriage cases. That is the nub of the Equal Protection issue. If marriage as an institution were only about the relationships adults form among themselves, it would undoubtedly violate Equal Protection for a state or the U.
Congress not to recognize as marriage any adult relationship seeking that recognition. But marriage is and always has been about much more than the self-fulfillment of adult relationships, as history, common sense, legal precedent, and the trial record in the Hollingsworth case itself demonstrate. These cases are not anomalies; rather, they carry forward a long and rich historical and philosophical tradition. This long-standing view was confirmed by the sociological and anthropological evidence introduced into the trial record. Given the nearly universal view, across different societies and different times, that a principal, if not the principal, purpose of marriage is the channeling of the unique procreative abilities of opposite-sex relationships into a societally beneficial institution, it strains credulity to contend that same-sex and opposite-sex couples are similarly situated with respect to that fundamental purpose.
Necessarily, given that conclusion, the district court also had to deny that procreation was part of the historical purpose of marriage. Rational Basis Review. If the Supreme Court were to move beyond the threshold inquiry normally required, Equal Protection analysis would then involve two additional steps.
The first is to discern what kind of classification is involved and therefore what level of scrutiny applies, and the second is to determine whether the classification survives that level of scrutiny. As held in Loving and countless other cases before and since, racial classifications are subjected to strict scrutiny, under which the statutory classification can be upheld only if the government demonstrates that its classification is narrowly tailored to further a compelling governmental interest. This has been applied primarily to gender classifications.
It likely inferred the permissibility of such a course from Lawrence v. Under the rational basis standard of review applied by most courts to classifications based on sexual orientation, those who are challenging the constitutionality of a statute must demonstrate that there is no legitimate governmental purpose that is even conceivably advanced by the classification. Encouraging procreation in stable relationships so that children are raised, where possible, by those who beget them is certainly a legitimate governmental purpose, and it is not at all difficult to conceive how lending support to an institution designed around the biological complementarity of the sexes rationally furthers that interest.
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Those who seek to redefine marriage to include homosexual relationships have been quick to point out that not all heterosexual married couples have children. Some such couples, because of age or infertility, are incapable of having children, yet marriage remains an option for them while it is not available to homosexual couples, even homosexual couples who, through artificial means, bring children into the world.
Under traditional rational basis review, however, the fit between classification and purpose need not be perfect or even close. A classification can be over-inclusive and under-inclusive and still be rational enough. Indeed, if all laws that were over- or under-inclusive were invalid, few laws would survive. Such a close means—end fit has never been required for the vast majority of laws that fall under rational basis review.
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Given the fact that the overwhelming number of the roughly four million children born in this country each year are born to heterosexual couples through ordinary means—children born to same-sex couples using artificial means account for less than one-half of 1 percent of the total—fostering an institution that is built around that biological fact cannot be viewed as irrational. A number of other governmental interests have been advanced in the marriage cases that easily pass normal rational basis review as well.
Because these are all at least legitimate governmental interests that are rationally furthered by laws defining marriage as being between one man and one woman, both DOMA and Proposition 8 should easily be upheld as constitutional if the Court continues to apply rational basis review. Heightened Scrutiny. One of the key issues, therefore, that the Court will confront in Windsor is whether the Second Circuit was correct to subject DOMA to heightened scrutiny. There are strong reasons why the Court may reverse that holding. The cases that are currently before the Court involve two lesbian couples Windsor and Hollingsworth and one gay couple Hollingsworth , but other cases involving other sexual orientations would likely follow.
With no logical stopping point, any limitation on marriage could be subject to heightened scrutiny—a prospect that the Court may wish to avoid. If the Court nonetheless holds that some form of heightened scrutiny is appropriate, it will have to determine whether the governmental interests expressed in the statute itself are sufficient, even though those interests were later disavowed by the Department of Justice.
Far from insubstantial, the importance of marriage as a union of a man and a woman as recognized in centuries of case law reflects a compelling interest that would arguably qualify under strict scrutiny, not just intermediate scrutiny. As noted, Murphy v.
High Court Strikes Down DOMA but Leaves Fate of Proposition 8 Uncertain
Heightened scrutiny also has a second step, however. Here, a classification that is significantly over- or under-inclusive may not pass constitutional muster. Many commentators believe that if heightened scrutiny is to be applied, statutes like DOMA and Proposition 8 must necessarily be unconstitutional because of this imperfect fit.
Requiring fertility testing before marriage and inquisitor panels seeking to determine procreative intent of fertile couples would surely yield a more perfect fit, but the cost in terms of privacy and other values would undoubtedly be deemed unacceptable. As long as encouraging procreation in the stable environment fostered by heterosexual marriage is deemed to be a sufficiently important governmental interest, it is certainly not unreasonable for the Court to recognize that the definition of marriage as the union of a man and a woman advances that goal as closely as is consonant with basic expectations of privacy.
Cultural institutions are fragile things. Marriage, as the more or less permanent union of one man and one woman, developed in large part to encourage the procreative relationship that is necessary for the perpetuation of society. No one knows the extent to which redefining marriage so substantially as to include relationships that are biologically not connected to that societal purpose will undermine the institution itself. Some of the evidence introduced at trial in the Hollingsworth case is not encouraging.
The ultimate question before the Court, then, is whether the decision to embark on such an experiment is to be made by the people, either through their legislatures or directly by voter initiative, or whether the Constitution, which is silent on this precise question, must be interpreted to have already answered the question. He is also the Chairman of the Board of the National Organization for Marriage and the founder of the Center for Constitutional Jurisprudence, the public interest law arm of the Claremont Institute, on whose behalf he has participated as amicus curiae in several of the marriage cases currently pending before the courts.
United States, F. Brown, F. City and County of San Francisco, 95 P. Horton , P. Proposition 8 Official Proponents, F. Brown at 4—5, Perry v. Schwarzenegger, CV N. Perry, S. Brown , Harv. See Sup. Under Cal. Oklahoma ex rel. Williamson, U. Klutznick, U.