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The Croatian Constitutional Court considers the demands of the LGBT movement against the will of the people

Published: 05.03.2020

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In Croatia, there is considerable public support for the protection of marriage as a union between a man and a woman, as confirmed by the 2013 referendum. Nevertheless, the Croatian Constitutional Court has ruled that people in single-sex cohabitation relationships shall have the possibility of applying for the status of foster parents. This is the result of applications filed by Croatian LGBT activists who demanded that the law granting such a right only to spouses and single persons be declared unconstitutional. The Court held that it was not necessary to quash the contested provisions and found that, in its opinion, social welfare bodies may not refuse to grant the status of foster family to persons living in same-sex relationships solely on the grounds of their sexual orientation.

In 2017, two men living in a cohabitation relationship – Ivo Šegota and Mladen Kožic – applied to the social welfare centre for foster family status. In November 2017, the centre rejected the application, indicating that the applicants had failed not meet the formal requirements of the Foster Care Act. The said men appealed against this decision to the Minister of Demography, Family, Youth and Social Policy, who in July 2018 upheld the decision of the Social Welfare Centre. In turn, Šegota and Kožic challenged the decision before the administrative court in Zagreb, pointing out, inter alia, that the law explicitly provides for the possibility of obtaining foster parent status by persons living in 'extramarital relationships' as well as single persons, and therefore, in their opinion, the decision to deny such status to persons living in a registered and state-recognised civil union may not be justified. In December 2019, the administrative court quashed the decisions of the Social Welfare Centre and the Minister of Demography, ordering them to examine the substantive application of both men. In January 2020, the Centre again rejected the application, maintaining the position that it was formally inadmissible.

Against the background of the case of Ivo Šegota and Mladen Kožic, there is an ongoing dispute in Croatia over the privileges for homosexuals. At the end of 2018, the Croatian Parliament passed a new Foster Care Act, which clarifies that a family or a single person may apply for the licence of a foster parent of a child, whereby a foster family is construed as a family unit composed of spouses, children and other relatives living in the same household. The questionable passage about people in 'extramarital relationships' has thus been removed. The Croatian Constitution defines marriage as a union between a man and a woman, and therefore in the practice of social welfare bodies, it has been recognised that the provision of the law reserving the right to obtain foster family status for spouses excludes such possibility for homosexual cohabitations – both registered and informal. At the beginning of 2019, a group of Croatian LGBT activists – including the Rainbow Family Association (Dugine Obitelji), in which Ivo Šegota and Mladenie Kožic are involved – challenged the new law before the Constitutional Court.

In January 2020, the Court rendered its judgement. On the one hand, it refused to abolish the contested law, but nevertheless stated that social welfare bodies are obliged to interpret the provision of law with due regard for the principle of equality and the prohibition of discrimination on the grounds of sexual orientation. This means that, according to the Constitutional Court, same-sex couples should be treated in the same way as married couples when applying for foster family status. The judgement was delivered by nine votes in favour and four against. In the CC's view, the contested legal provisions should be interpreted and applied in such a way so as to ensure that not only married couples, but also people living in cohabitation relationships – including single-sex couples – have the possibility to become foster parents. In the Court's view, no convincing objective arguments have been put forward that would justify the omission of one category of citizens from the procedure.

The judgement of the Croatian Constitutional Court is a classic case of judicial activism in which judges stop interpreting the law and start creating it, and on top of that, contrary to the beliefs of the majority of society. In the case of the foster care for children, Croatian law is clear: Article 9(1 and 3) of the Foster Care Law clearly states that only married people can be a foster family for a child, with Article 61 of the Constitution defining marriage as a union between a man and a woman. Both provisions were introduced with strong support from the society. The law was passed by the Parliament in 2018, while Article 61 of the Constitution was introduced in 2013 following a national referendum in which more than 65% of voters spoke out in favour of an unambiguous definition of marriage as a union between a man and a woman. Meanwhile, the Croatian Constitutional Court orders social welfare bodies to interpret the provisions in isolation from their underlying text and to rely on a twisted interpretation of the principle of equality. It cannot be stressed enough that jurisprudence and legal science have always recognised that the principle of equality requires that similar entities be treated the same, and different entities be treated differently from each other. Homosexual persons cannot be considered as persons similar to married persons, because they are characterised by a lack of capacity to procreate and, as research shows, by instability of relations and a strong tendency to have many partners at once”, points out Karolina Pawłowska, Director of the International Law Centre of the Ordo Iuris Institute.

Case No. U-I-144/2019, judgement of the Constitutional Court of Croatia of 29 January 2020.

 

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