#7 Romania – Picking up the white glove: juridical arguments in contentious discourse concerning the legal recognition of same-sex couples in Romania

By Mihai Popa

In a national-level survey carried out last year by a Romanian human rights NGO, 89% of respondents declared to have heard about the European Court of Human Rights (ECtHR or the Court). A sober reading would interpret such data as meaning that probably 89% of Romanians either have heard of the Strasbourg Court or are embarrassed to admit otherwise. Be that as it may, it is impossible to neglect the fact that the ECtHR has been very visible in the public sphere during the last few years, and the mass media has been an important mediator of messages containing references to the ECtHR. This note begins with an illustration of how this happens. While the very likely high level of awareness about the ECtHR in the country pertains to a variety of topics in relation to which the Court has in time gained visibility (e.g. post-Communist property restitution; the living conditions of detainees in Romanian prisons), my aim in this intervention is to discuss certain trends relevant to my own field research, namely the increased engaging of human rights discourse and arguments by actors from the religious sector of Romanian civil society.

Below, I start by translating a recent heated dialogue in a debate about gay marriage aired on a national television channel on September 20, 2016. The dialogue[1] takes place between an LGBT activist, a conservative journalist who is also an Orthodox theologian, a former humanist activist who is currently a prominently pro-LGBT  Romanian MP, and an actress participating in a nation-wide social mobilization aiming to redefine marriage in the Constitution as being constituted between a man and a woman. The wider national context is one in which (1) the Constitutional Court is currently analyzing the claim of a gay couple (formed by a Romanian and a US citizen) to have their marriage contracted  in Belgium granted legal recognition in Romania; (2) 3 million signatures have been gathered at the initiative of the non-governmental Coalition for the Family in order to organize a referendum on modifying the definition of marriage in the Constitution; (3) a draft law on civil partnerships for heterosexual and same-sex couples has been rejected several times by the Romanian Parliament and is about to come up again on its agenda.

 

LGBT activist: I just wanted to say that, indeed, the Constitutional Court also looks very carefully at the European jurisprudence. And the European Court of Human Rights has numerous cases in which it specifies that the member states of the Council of Europe must respect the right to intimate and family life of citizens, of all citizens, including couples formed by persons of the same sex. Thus, the ECtHR tells us very clearly that we must adopt either gay marriages or partnerships, otherwise

Conservative journalist: It’s not true, mister! We come with ECtHR legislation [sic]!

LGBT activist: we are liable to be convicted.

Conservative journalist: You invite them to lie non-stop here? I came with the ECtHR’s legislation!

Moderator: Please.

Conservative journalist: I came with the ECtHR’s legislation!

Pro-LGBT parliamentarian: I have it here as well.

Pro-family activist: Well, I have it as well…

Conservative journalist: What are we doing here? Confusing everybody, fooling the people? Are we inviting people on television to lie?

Moderator [to the journalist]: Please, Mr. […] answer please.

Conservative journalist: Where does it say so, mister? Which decision of the ECtHR?

LGBT activist: Oliari versus Italy! Please look for Oliari versus Italy!

Conservative journalist: I’ll read two to you now, so that you calm down.

LGBT activist: Please!

Conservative journalist: Here, take the pen, write down.

Pro-LGBT parliamentarian: A decision regarding Great Britain and one regarding Austria.

Moderator [to the journalist]: Please.

Conservative journalist: Do you have a pen in reach, to write down?

LGBT activist: I do not need lessons from you.

Conservative journalist: No, but it’s good to keep in mind, ECtHR decisions, 2008…

LGBT activist: We know.

Conservative journalist: Decision Hamalain [Hamalainen] versus Finland from the perspective of the rights of states, “states cannot be obliged to allow marriages between persons of the same sex”. Two thousand and eight!

LGBT activist: But at the same time… please…

Conservative journalist: Listen a bit

Pro-LGBT parliamentarian: You are citing selectively.

LGBT activist: You are citing selectively.

Conservative journalist: Take a pen and write. ECtHR decision 2010. Schelk and Kapf [Schalk and Kopf] versus Austria: “the states are free to reject same sex persons’ marriages”. ECtHR decisions from 2008, 2010. Consult, look… you cannot say he’s not a jurist, Mr. […], a member of the Superior Council of Magistracy. The decision of the ECtHR was the following: look, allow them to have civil partnerships. You come and say “no, the ECtHR is threatening us that if not, if the states don’t…”, there are two decisions of the ECtHR, 2008 and 2010 which say “the states are sovereign to accept or not marriages”. The marriage between persons of the same sex is one thing, and civil partnership is another. If you want, I’ll explain these to you as well.

LGBT activist: This is what I said as well before.

Conservative journalist: You didn’t say so before, so …

LGBT activist: Yes, I did.

Conservative journalist: Don’t be hysterical and take notes, then you can go and speak. There was an Italian case in which Italy refused the marriages of persons of the same sex, something which it does today as well. And the ECtHR pleaded, because this is about human rights, [for a protection] to exist, and Italy accepted civil partnerships. Something that the master here [the Pro-LGBT parliamentarian] also requested, and has a law proposal for civil partnerships or civil union, I saluted it, it’s absolutely correct. Don’t come with this lie on television to say that the ECtHR obliges Romania to recognize marriages between persons of the same sex.

 

The dialogue above illustrates an exchange of ‘blows’, to use a classical sociological term, that one can observe nowadays taking place in Romania between actors engaging in the contentious politics surrounding the legal recognition granted to same-sex couples. I will focus here on one aspect of this serious social game, the use of juridical arguments – above, grounded in ECtHR case-law –, what I call the ‘white glove’, picked up by the adversaries from both ‘camps’ (a term used by Romanian activists themselves) for part of the confrontation (the whole talk show lasted over 90 minutes in total).

Human rights discourse has recently been engaged more and more by religious actors (clergy and laity) in Romania, in order to advocate the conservation of traditional values and the presence of religion in the public sphere. This general statement applies especially to civil society activists, whose presence in public debates is increasingly visible. For instance, in 2009 in a show aired at approximately the same time of day by the same national television channel as the one from which I reproduced the dialogue above, the same pro-LGBT humanist activist who today is a parliamentarian was invited to debate with an Orthodox priest and with a well-known poet and Social Democrat parliamentarian the question of whether Romania, after having recently changed its Civil Code to the effect of explicitly defining marriage as the union of a man and a woman, should recognize same-sex marriages between citizens of other countries, contracted outside its borders. While the activist presented the recognition of same-sex marriages as a question of “fundamental human rights”, the Social Democrat poet, outraged by the idea, considered the recognition through state law of same-sex marriages as a step towards the “total collapse of the human condition”. The Orthodox priest considered the matter of same-sex marriages as one of “legalizing sin” and pointed out that the Orthodox Church “would not have believers if the family were not healthy”. In contrast to the 2016 debate, the ECtHR was not mentioned in the discussion and ‘human rights’ was a frame of reference invoked only by the humanist activist.

The explanation for why the 2016 debate contained references to the ECtHR is surely multifaceted. It is important to take the national context into account in order to understand why actors on television even bother to engage in a debate about what the European Court has said recently or in the past. I don’t know if the participants in the debate knew that 72% of respondents in the same national-level poll cited at the beginning of this note declared to hold high and very high levels of trust in the European Court of Human Rights. Still, I would suspect that they had some idea that the ECtHR is well regarded by the Romanian public (not least due to the fact that, in the aftermath of several ECtHR decisions, criminal investigations were taken up again in the file regarding crimes committed during the 1989 Revolution). But important as the national context may be, I find even more interesting the transnational dynamics that may account for the referencing of the ECtHR in the above depicted debate.

In a recent paper my colleague Liviu Andreescu and I have written (currently in the process of being submitted for peer-review), we discuss the transnational dynamics that in our view account for the interest manifested by Romanian civil society activists in the European Court of Human Rights. Chronologically, the interest in the ECtHR developed sooner in the humanist/secularist/pro-choice/pro-LGBT camp of Romanian civil society and this development was related already in the 1990s to the interest in the ECtHR of NGOs from outside the country. As a reaction to the frequent use of ECtHR-related arguments by these activists, actors from the faith-based/pro-life/pro-family sector of civil society also became interested in the Strasbourg Court and its jurisprudence. Again, this did not happen in isolation from developments taking place outside the country. To return to the example discussed here, the ECtHR decision in Oliari v. Italy (a case my colleague Pasquale Annicchino is currently researching in depth), invoked by the LGBT activist in the debate, was saluted as a milestone decision for LGBT rights by ILGA Europe, the European branch of the International Lesbian, Gay, Bisexual, Trans and Intersex Association[2]. In contrast, the European Centre for Law and Justice (ECLJ), an international NGO with a focus on protecting religious freedom, was comparatively silent on the Oliari v. Italy decision, after the Centre’s third-party intervention at the ECtHR in the Oliari case eventually proved unsuccessful. This reaction of the ECLJ to the Oliari decision was different from those to the decisions in the cases Hämäläinen v. Finland and Schalk and Kopf v. Austria, saluted by the representatives of the NGO after they were adopted[3]. But the Oliari decision was made known to the Romanian religious civil society activists I talked to, among others, by a Romanian-speaking jurist from the ECLJ who interpreted the decision for the Romanian audience as imposing civil partnerships on the Italian state[4]. Such an interpretation reached grassroots activists, as I could tell from an interview I conducted with a non-jurist volunteering for a religious NGO that at present participates in the mobilization for changing the definition of marriage in the Constitution.

Whether the ECtHR, through its Oliari decision, was ‘pleading’ or ‘imposing’ is a matter for further discussion between Romanian activists. What remains is that this decision, taken by a supranational court, is relevant at present to debates in the Romanian public sphere. Since the legitimacy of the ECtHR cannot easily be shaken in the present Romanian national context, religious activists in Romania have little choice but to pick up the ‘white glove’ and engage with human rights arguments in public debates. To which decisions they will pay attention and how they will translate the messages of the Court to the Romanian public will probably depend on argumentative strategies that have a transnational logic. The game – at times more similar to boxing, at times more similar to chess – continues, and the jury is still out on whether one side or the other scores more by appealing to the ECtHR’s jurisprudence.

[1] See min. 19:45- 22:30 of the recording.

[2] http://www.ilga-europe.org/resources/news/latest-news/ecthr-italy-recognition-july-2015, accessed November 3, 2016.

[3] http://eclj.org/the-eclj-welcomes-the-echr-decision-affirming-that-there-is-no-right-to-marriage-or-to-registered-partnership-for-homosexuals-under-the-european-convention-of-human-rights, accessed November 3, 2016; https://c-fam.org/turtle_bay/the-echr-does-not-impose-an-obligation-on-contracting-states-to-grant-same-sex-couples-access-to-marriage/, accessed November 3, 2016.

[4] http://inliniedreapta.net/oliari-si-altii-c-italia-cedo-impune-italiei-sa-instituie-parteneriatele-civile-pentru-cuplurile-de-acelasi-sex-urmatorul-pas-e-casatoria/#sthash.Mz9cUALt.dpbs, accessed November 3, 2016.

11/11/2016