• Andrew Tettenborn

EU to Romania: How dare you say marriage is only between man and woman!

Just for a moment forget, if you will, Poland and Hungary and their troubles with the ever-more-progressive western bloc of the European Union. The latest recruit to the Euro-awkward squad is Romania.

The casus belli this time is a proposal to amend Article 48 of the Romanian constitution to do what would not have raised an eyebrow twenty years ago: define marriage explicitly as a union between a man and a woman. The arguments around it show nicely the workings of the European great and good, both in the EU and outside it.

Last week, Romanian Senators voted 107-13 to approve a law that would pave the way for the constitution to be changed to explicitly state that marriage is a union of a man and a woman. The constitution currently states that marriage is a union between “spouses.” A senator for the ruling Social Democratic Party, Serban Nicolae, said the vote was on religious grounds: “we’ve been a Christian nation for 2,000 years.”

It all started last year with a move to use the popular referendum procedure for the constitutional change. This requires at least 500,000 signatures and the approval of the plebiscite by a two-thirds majority of each house of the Romanian parliament. The proposal got three million sign-ups (about 15% of the entire Romanian population) and a nine-tenths majority in the lower house!

“We’ve been a Christian nation for 2,000 years.”

Cue a self-important letter from 33 Members of the European Parliament (MEP) (including our very own Seb Dance, Alyn Smith, Keith Taylor, Julie Ward and Glenis Willmott), demanding in the name of “democratic values” (!) that the Romanian upper house put a stop to “a referendum that would further divide society”. This was followed by a hostile statement signed by 31 diplomats, including representatives of the US, France, Germany and (of course) the European Commission.

Romania’s Senate, its Upper House, evidently was unmoved by this disinterested intervention in its affairs: on September 11 it defiantly voted for the referendum to go ahead.

Alarmed at this worrying explosion of people power, three groups immediately did what all embattled defenders of establishment values do: they went to law against what they say is a homophobic gay marriage referendum in Romania (with what result we don’t yet know).

Who are the three groups? One you’ve probably guessed: Amnesty International, once a very wholesome thorn in the side of seriously beastly governments, but now a reliable supporter of progressive causes elsewhere with a somewhat lukewarm attitude to democracy.

Another was the International Lesbian, Gay, Bisexual, Trans and Intersex Association (IGLA), an umbrella group for LGBT activist groups in Europe generally. The third is ECSOL or the European Commission on Sexual Orientation Law, an officially independent group of activists and human rights lawyers with a connection to the Fundamental Rights Agency of the EU whose charter of fundamental rights it is pledged to uphold.

What’s interesting about this is the difficulty for any reasonable observer of seeing what Romania has done wrong – apart, that is, from having touched a raw nerve of the Western European establishment.

The referendum can hardly be accused of being an exercise in naked populism, given that its holding has to be, and has been, approved by two supermajorities of elected representatives. Nor does the proposal itself lack democratic or social legitimacy: by all accounts it has large popular support, and is backed not only by all three major churches (Orthodox, Catholic and Protestant) but in addition all the important political parties.

As for the argument that it infringes fundamental rights, this seems difficult to make good. The Romanian constitution already provides the usual guarantees of equality and liberty. There is no European human right to a gay marriage, even in the bloated conception of human rights now espoused by the European Court of Human Rights.

There is no European human right to a gay marriage.

Indeed, it’s not as if the proposal changes the actual law at all. Romania does not allow gay marriage as it is: all this would do is to put the prohibition on a constitutional basis. It isn’t even a case of exceptionalism within the EU: Bulgaria, Hungary, Latvia, Lithuania, and Poland already have exactly what Romania wants.

But that doesn’t worry the European elite, which clearly knows better than the benighted Romanians and their elected representatives.

Whatever the EU commitment to pluralism in the Treaty on European Union, it apparently shouldn’t cover a state’s right put to its people a social policy proposal that will not change the existing law; which will bring the state into alignment with at least five other EU states; which is not contrary to European human rights law; which is desired by all the major political parties; and which is popular with both the man in the street and the churches he worships in.

Time only will tell what the lawyers in the Romanian Supreme Court will make of the argument that the people can’t be trusted with a vote on it.

(Andrew Tettenborn is a professor of commercial law at a well-known UK university, who also teaches in Europe and elsewhere. In the 2001 General Election he stood as UKIP’s candidate in Bath).