03 Oct Homophobic constitutional changes in Macedonia
To Whom It May Concern,
The Government of the Republic of Macedonia has proposed changes to the Constitution including Amendment 33 which defines marriage and civil unions, but also any other form of registered life partnership, exclusively as a union between one man and one woman. Below is the text of Amendment 33 that regulates marriage, civil unions and any other registered form of life partnership:
AMENDMENT XXXIII
1. Marriage shall be a life union solely of one woman and one man.
2. A civil union, or any other registered form of life partnership, shall be a life union solely between one woman and one man.
On the 7th of July 2014, seven proposed constitutional amendments, including the Amendment XXXIII that was meant to provide for a ‘clearer definition’ of marriage as a union between one man and one woman entered into Parliamentary debate along with the other proposed constitutional amendments. These amendments, however, contained only the definition of marriage as a union between one man and one woman. The definition of civil union as a union between one man and one woman was not included in the proposal but was nonetheless included in the draft amendments, which was a flagrant violation of the procedure for constitutional changes and an audacious abuse of the decision of the Parliament to proceed with the originally proposed constitutional amendments. On the 27th of August 2014, the seven draft amendments were passed in national Parliament and there, the proposed Amendment XXXIII contained definitions of civil unions, or any other registered forms of life partnership as life unions solely between one woman and one man.
Therefore, we are writing you to express our concerns regarding the draft constitutional amendments in Macedonia which include the definition of marriage and civil unions exclusively as unions between one man and one woman. We are deeply concerned about LGBTI rights in Macedonia for there are numerous instances of human rights violations and absence of effective protection and persecution by the state authorities. Therefore we believe that this change will only enhance discrimination, violence, and hate speech toward the LGBTI community. The exclusive constitutional definition of marriage, civil unions, and any other form of registered partnership is discriminatory toward LGBTI people by restricting their right to family life and all the civil and social rights arising from it.
The contemporary international jurisprudence has already taken a position on this issue. In the case of Schalk and Kopf v. Austria (No. 30141/04, ECHR 2010), European Court for Human Rights stated that the relationship of a cohabiting same-sex couple living in a stable de facto partnership is falls into the category of ‘family life’, just as would be the case with different-sex couples in a comparable situation. In the case Vallianatos and others v. Greece (29381/09 and 32684/09), the court ruled that the legislative exclusion of registered civil same-sex partnerships presents a violation of Article 14 (Prohibition of discrimination) taken in conjunction with Article 8 (Right to respect for private and family life). In its Opinion on the Fourth Amendment of the Fundamental Law (Constitution) of Hungary, from 14-15 June 2013, the Venice Commission clearly stated that a formulation with similar restrictions to family life was not aligned with Article 8 of the European Convention on Human Rights, calling upon the reasoning provided in Schalk and Kopf v. Austria (see above). In other words, the state is truly completely free to define marriage as a form of union and the forming of a family (Art.12, ECHR), but as soon as it begins granting other rights and privileges inherent to marriage to de-facto partnerships that cannot be considered as ‘married’ under national laws (registered partnerships), then and sexual orientation and gender identity of such individuals must not be an obstacle to the exercise of those rights.
If this effort of the Macedonian Government gets voted by the national Parliament and incorporated into the national Constitution, it will create precedence in European law on restricting the right of family life through the use of Constitutional mechanisms. This presents a danger to the development of human rights in Europe, because it is a model that can easily be later applied in other national contexts. To be more specific, the constitutional restriction of international human rights standards is not regulated equally among states in Europe. Those countries that claim supremacy of domestic constitutional law over international law can impose constitutional restrictions that are not aligned with international human rights law and standards, and in the same time are superior in the national legal system. In return, this can make the reaction of the International community much more difficult and much less fruitful.
We call for and encourage all our international friends, human rights and democracy advocates to demand from the Macedonian Parliament, President and Government not to support Amendment 33 of the constitutional changes. Also, we call for and encourage all our partners to inform their respective Governments of the violations that this Amendment can impose on the right to family life, and the consequences it can have in other national contexts.