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The Blood Bath that Wasn’t Supposed to Happen

Romania's Marriage Referendum


Peter Costea


In a span covering less than three weeks, from the end of September through the beginning of October 2018, the European Union, Romania’s main political parties, politicians, mass media, and social media trolls succeeded in annihilating the greatest democratic endeavor in Romania’s post-communist era: the defeat of the citizens-initiated constitutional amendment to enact natural marriage in Article 48 of Romania’s Constitution. I was there for the last two weeks of the campaign crisscrossing the country[1], campaigning in earnest and witnessing for myself the collapse of democratic intercourse and the blood bath left behind by the concerted attacks against the referendum by the European Union and its lackeys in Romania. How did this come to be, and what motivated the aggression of the opponents?

By way of background, Romanians have attempted since 2006 to amend Article 48 to make it consistent both with their tradition and with the natural meaning of marriage. In 2006 they launched a similar constitutional amendment, which was supported by 650,000 signatures, well in excess of the half a million needed to trigger a national referendum. However, in July 2007 Romania’s Constitutional Court halted the process because the geographical dispersion of the signatures fell short of the legal requirements. According to law, at least half of Romania’s 40 counties had to provide at least 20,000 valid signatures each for the process to move forward.[2]

A second attempt was initiated in November 2015 when a group of Romanian citizens initiated the same constitutional amendment to enact the institution of natural marriage between a man and a woman in Romania’s Constitution. Though they only needed the backing of half a million valid signatures for this purpose, they instead obtained three million in the required six-month period. In the summer of 2016 the amendment was ruled constitutional by Romania’s Constitutional Court, and it was then voted on and approved by a large margin in Romania’s lower chamber of Parliament, the Chamber of Deputies, in May 2017. Bickering among Romania’s political parties over the amendment led to repeated and frivolous appeals to Romania’s Constitutional Court, and the country’s President, Mr. Klaus Iohannis, who is to take up the Presidency of the European Union for six months in the first half of next year, also positioned himself against the proposed amendment. All appeals were exhausted by late spring 2018 and on September 11, 2018, Romania’s Senate adopted the amendment with a vote of 107 to 13.[3]

By law, the amendment was to be put to a vote in a national referendum within 30 days of its adoption in the Senate. The government scheduled the referendum for the weekend of October 6 and 7, giving the citizens only a little over three weeks, 24 days to be precise, to campaign in favor of or against the constitutional proposal. However, this time period was further reduced by a week because, according to Romanian law, the Constitutional Court had to validate the amendment a second time. The second validation was more challenging; among others, a slew of international organizations and non-governmental organizations headed by Amnesty International filed massive amicus curiae briefs in the Romanian Constitutional Court demanding that the referendum be blocked. Essentially, these organizations demanded that the citizens of the young Romanian democracy not be allowed to exercise their constitutional rights but be treated as second-class citizens in a European Union where citizens are regularly encouraged and urged to vote in national referenda.[4]

On the pro-referendum side, Romania’s Families Alliance was the only non-governmental organization to file an amicus curiae in support of the referendum. There were no amicus curiae or interventions filed by the government or by political parties or groups. Nevertheless, the second validation by the Constitutional Court, by a vote of 7 to 2, came down on September 17. The Court’s ruling only became effective, however, upon its publication on September 18 in the government’s official legal publication. Only on September 18 was it entirely clear that the referendum would actually take place, allowing the citizens only 19 days of effective campaigning, not even three full weeks. Citizens scrambled to mobilize the public for the referendum; draw up posters, flyers, and banners; and obtain permits from city halls to place and disseminate campaign materials in public forae.

Another major challenge was the requirement of a voter turnout threshold to validate the amendment, a threshold which required that at least 30% of all of Romania’s eligible voters actually vote. This turned out to be an immense challenge because millions of Romanians live abroad, mainly in Western Europe and in the Republic of Moldova, and have limited access to voting precincts. According to Romania’s official records, there are nearly 19 million Romanian citizens with the right to vote around the globe, of whom nearly 6 million had to vote to validate the amendment. In contrast, most Western democracies do not impose a turnout threshold, the Irish referendum of 2015 on gay marriage being validated by a vote of only 1.2 million.[5]

The wording of the amendment on the ballot was also confusing. It merely asked citizens to vote “yes” or “no” in response to the question “do you agree with the law adopted by the Parliament for the revision of the Constitution?” It did not state, as one would expect, “do you agree with defining marriage in Article 48 of the Constitution as the union between a man and a woman?” Unlike in the United States, Romania’s laws do not allow citizens to challenge the wording of a ballot initiative. The wording is a template written into law, and cannot be attacked in courts. People were confused and concerned that the amendment was an underhanded scheme of sorts of the ruling socialist government, which to this day remains the most unpopular government in Romania since that of December 1989. For this reason disinformation spread online like wildfire that the referendum was a “socialist scheme” designed to mislead honest and well-intended citizens.

In the end, however, 3,857,308 eligible Romanian citizens voted around the world, of whom 3,531,732 voted in favor of the amendment, or 93.40% of the total.[6] This turnout equaled 21.1% of all eligible voters. By way of comparison, the highest adoption rate of any marriage amendments in the United States was in Tennessee, with slightly over 81% voting in favor. Had there been no threshold required, the marriage amendment today would be part of Romania’s Constitution backed by an adoption rate unprecedented anywhere in the world. But when one considers the challenges, in retrospect it is in fact extraordinary that even one in five eligible Romanian voters voted. But for the concerted efforts of the European Union, Romania’s political parties, politicians, and the mass media, Romania would have become the 50th state in the Council of Europe to define marriage in its natural sense as the union between a man and a woman in its Constitution.

Europe’s socialists railed against the referendum and, in their typically arrogant fashion, lectured Romania’s socialist government to do everything it could to ensure the referendum would not pass. Back in late September of 2018, Euractiv reported that on September 26 leaders of the socialist group in the European Parliament met with Romania’s Prime Minister, whose socialist democratic party is currently in power, asking Romania’s socialists to stand up “against the constitutional change to ban same-sex marriage.” Discussions were heated and shouts were heard even by those standing outside the chambers where the conversations occurred, as socialist leaders raised their voices at their Romanian counterparts. The shouting apparently had an impact. Before the meeting, Romania’s socialists pushed for the referendum but, upon returning home, announced they would no longer campaign in favor of the amendment.[7]

Romania’s other political parties fell in line as well, including even those who consider themselves politically on the right. Even more egregiously, during the actual campaign, politicians aligned with conservative parties filed complaints against nongovernmental and civic organizations that put up billboards in support of the amendment, claiming that these organizations violated applicable campaign laws. City halls around Romania moved in earnest to compel the removal of the banners. Curiously, the same city halls had previously approved the display of the same banners and in the same venues. One extreme example involved a church which draped its frontispiece with a huge banner asking people to vote for the amendment. City hall compelled the church to take down the banner, but after sustained public outcry, the mayor’s office backed down. No due process or avenues to challenge the ad hoc decrees of local officials were available to the public. Banners were ordered removed on a whim upon the filing of a mere citizen’s complaint. In the western city of Timisoara, the city hall decreed the halting of dissemination in public of flyers that were deemed offensive to same-sex couples by noting that same-sex marriage would hurt children. These are just some of the many examples that back up the notion of an entirely chaotic campaign.

Courts were impotent and seemed unable to discern between campaign laws applicable to routine elections and those applicable to referenda, especially citizens-initiated campaigns. This referendum was the first citizens-initiated referendum in Romania’s history.

The psychological war against the referendum was also fueled by a dissenting opinion appended to the September 17, 2018 Constitutional Court ruling wherein the dissenting judge portrayed those Romanian citizens who subscribe to the “traditional view of marriage” as owing their views to a “retrograde vision” which was seemingly in conflict with the rulings of the European Court of Human Rights. The dissent ignored the fact that the European Court of Human Rights has, thus far, ruled on more than one occasion that there is no right to same-sex marriage in the European Convention of Human Rights.

Many of Romania’s politicians encouraged the citizens to boycott the referendum. This would be unthinkable for citizens of the American republic, where no politician would dare encourage citizens not to vote. On the contrary, in most democracies citizens are encouraged to vote and in some, like Australia, they are penalized, albeit nominally, if they do not. One notable voice against the referendum was one of Romania’s members of the European Parliament and former Minister of Justice, Monica Macovei, who persuaded her colleagues in the European Parliament not to issue a note of support in favor of the referendum as they had initially planned.´

Romania’s mass media coverage of the referendum was also a complete failure. The media seldom invited supporters of the referendum to appear on television or radio programs, and it focused on largely irrelevant issues, such as “discrimination against sexual minorities” and the high cost of the referendum, around $50 million, which, the critics said, could have been put to better use, such as the building of schools or hospitals. Not on a few occasions the only guests to appear on these programs were trolls who delivered diatribes for minutes on end without being interrupted.

The Romanian marriage referendum failed, and it is uncertain that it will ever be put to a vote again. Nevertheless, the positive outcomes were substantial: 3.5 million citizens battled confusion, threats, the politicians’ opprobrium, the scorn of Europe’s left, and the relentless attacks of social media trolls, and voted for natural marriage. The referendum was free, no doubt. But it also was not fair. Had all eligible citizens voted, very likely 90% or more would have voted in favor of the amendment. But the 30% threshold, undemocratic by most global standards, doomed the referendum to fail. Nevertheless, despite this failure, one can say that this exercise in democracy was an unofficial plebiscite of sorts, similar to the one held in Australia in 2017, where citizens expressed their view on marriage very clearly. In the 2017 Australian plebiscite, a little over 38% of citizens supported keeping natural marriage as the normative family institution in Australia. In this respect the Romanian outcome was certainly crushing. The votes in favor of the amendment were also unusually high among the Romanians living in Western Europe, where more than 100,000 voted. This favor toward the natural definition of marriage demonstrates that these Romanians were well aware of the consequences of same-sex marriage in the countries where they work, and wanted to ensure that these conditions do not replicate in Romania.

For now, same-sex marriage in Romania remains forbidden by explicit legislation and marriage continues to be defined in the country’s Civil Code as the union of a man and a woman. Changing the law will be challenging because it requires a vote of 60% or more of the Parliament. It is doubtful this will happen in the near future or even in midterm. When 3.5 million Romanians tell politicians they want to preserve natural marriage as the norm in their country it would be foolish for those who represent them in the Parliament to legislate otherwise. At least for now.

 

Peter Costea practices law in Houston, Texas.


[1]     Sabra Ayres and Laura King, “The religious right lost the fight over gay marriage in the U.S., but it sees hope in Eastern Europe,” Los Angeles Times, October 5, 2018, available at https://www.latimes.com/world/europe/la-fg-romania-referendum-20181005-story.html. 

[2]     Clifford Bob, The Global Right Wing and the Clash of World Politics (Cambridge: Cambridge University Press, 2012), 96-108.

[3]     “Senatul a decis: Referendum pentru familie pe 7 octombrie,” antena3.ro, September 11, 2018, available at https://www.antena3.ro/actualitate/senatul-a-decis-referendum-pentru-familie-pe-7-octombrie-486089.html.

[4]     “Amnesty calls upon Romania to stop the ‘traditional family’ referendum,” Euractiv, September 14, 2018, available at https://www.euractiv.com/section/elections/news/amnesty-calls-upon-romania-to-stop-the-traditional-family-referendum/.

[5]     WebArchive.org, “Referendum Ireland,” available at https://web.archive.org/web/20150809115721/http://www.referendum.ie/results.php?ref=10.

[6]     Biroul Electoral Central, “Referndumul national pentru revizuirea Constituei din 6 si 7 octombrie 2018,” October 10, 2019, available at http://referendum2018.bec.ro/wp-content/uploads/2018/10/prezenta_16.01.pdf. 

[7]     “Angry EU Socialists grill Romanian PM over same-sex marriage referendum,” September 26, 2018, Euractiv, available at https://www.euractiv.com/section/justice-home-affairs/news/angry-eu-socialists-grill-romanian-pm-over-same-sex-marriage-referendum/.