Conservatives in the Saeima are critical about the judgment of the Constitutional Court

The Saeima, which has repeatedly proved that its majority is conservative, will have to change its attitude towards same-sex couples. The Constitutional Court has declared a norm of the law which does not provide for the right of parental leave for same-sex couples after the birth of a child to be inconsistent with the Constitution of Latvia. At the same time, the court has pointed out that this judgment requires the liberalization of the legal status of families - the legislator must ensure the legal protection of each family.
13.11.2020. Jānis Lasmanis
©Dmitrijs Suļžics/F64

Daniels Pavļuts, the chairman of the Saeima faction Development/For! (Latvian: Attīstībai/Par!), who has already unsuccessfully tried to include the legalization of same-sex couples in the agenda of the Saeima, has expressed his satisfaction with the court's ruling and points out that the Saeima will no longer be able to avoid resolving this issue.

"The Constitutional Court says that there is an inconsistency but does not say how it can be resolved. I have long been concerned that the conservative majority of the Saeima would prefer someone else to introduce a modern legal system for family rights in their place. The Saeima will not be able to evade this obligation. These are issues that we have been trying to include in the agenda of the Saeima for several years now, now they will have to be included,” says the deputy.

The National Alliance (Latvian: Nacionālā apvienība), on the other hand, has traditionally opposed the legalization of same-sex marriage and families, and the deputy chairman of their Saeima faction Jānis Dombrava is critical of the Constitutional Court's judgement and points out that, in his opinion, the court has not always made reasonable decisions and this could be one of them - unreasonable and subjective, not based on the Constitution.

"It is clear that the ruling will have to be read more closely - what precisely is said there. One thing is the press releases I skimmed through. The second thing -

judgments of the Constitutional Court are not a panacea. Sometimes they have been absolutely stupid.

As an example, I can cite the judgment of Abrene, that it is a newly acquired territory, despite the fact that Latvians have lived in the Abrene district for thousands of years. It can be observed that often the judgments of the Constitutional Court are formed from those who are currently in office in the Constitutional Court. Therefore, it is necessary to carefully analyze whether in the judgment the court has assessed other articles of the Satversme, which lay down the definition of a family very precisely,” says the representative of the National Alliance.

The state must respect homosexual relationships

Representatives of the Constitutional Court - its chairman Sanita Osipova and Judge Gunārs Kusiņš - point out that families can be different - also same-sex - and the judgment of the Constitutional Court in no way infringes on the marriage between a man and a woman as defined in the core law of the state.

Osipova points out that every person has the right to the protection of his or her physical and mental integrity, honor and dignity, as well as the right to live according to his or her will and, in accordance with his or her nature, to develop and improve his or her personality without suffering from state interference.

She also says: Article 96 of the Constitution provides that every person has the right to his or her inviolability.

One of the elements of a person's private life is his or her sexual conduct, the freedom of a person's sexual conduct must be protected, regardless of the form in which it is expressed or the person's sexual orientation. Within the framework of private life, a person has the right to establish relations of various nature, including sexual relations,

says the Chairperson of the Constitutional Court.

The judge emphasizes that the society consists not only of persons who form family relations with members of the opposite sex, but also persons who form such relations with members of their own sex. "The state must equally respect those members of society who form same-sex relationships, and we must respect the fact that such couples can form families," says S. Osipova.

She said that the state must ensure that the child grows up in a family environment, and when developing a legal framework that affects the child, the legislator is obliged to assess their impact on the affected rights of the child.

Taking into account that this judgment concerns a broad legal regulation and not just a single law, the Constitutional Court has instructed the legislator to eliminate the shortcomings established in the state regulatory enactments by 1 July 2022. Given that this task will be challenging for the conservative Saeima, and that this date is already considered to be the time of the 14th Saeima pre-elections, it can be assumed that some parties will find it extremely difficult to explain some decisions to their constituency.

Private initiative

The Constitutional Court assessed the application of a couple when the partner of the child's biological mother was not provided the right of parental leave after the birth of the child. In the present case the applicant requested to verify the compliance of Section 155, Paragraph one of the Labour Law with the first sentence of Section 110 of the Constitution.

The first part of Section 155 of the Labor Law stipulates that the father of a child has the right to ten calendar days of leave, but the first sentence of Article 110 of the Constitution provides that “The State shall protect and support marriage - a union between a man and a woman, the family, the rights of parents and rights of the child”.

The applicant holds that the contested norm does not comply with the first sentence of Article 110 of the Constitution. The applicant stated that she was in a stable same-sex relationship with her partner and that the applicant's partner had two children after their cohabitation.

The woman stated that she wanted to go on ten calendar days' leave after the birth of the youngest child. However, the contested norm envisages that the right to ten calendar days of leave after the birth of a child belongs only to the child's father, but such a right does not provide for the child's mother's partner, who is in fact considered to be one of the child's parents.

The Applicant emphasized that the contested norm contradicted the principle of prioritizing the best interests of the child, as it did not allow a person to provide physical and emotional support to their partner and her child and thus did not protect the interests of the child in the best possible way in all families.

Lauris Liepa, a lawyer for Association of LGBT and their friends Mozaīka, said at the court hearing that discriminatory treatment of same-sex couples with children is not allowed or justified, because both partners are the child's parents. Kaspars Zālītis, a member of the board of Mozaīka, also added that there is a stigma in society regarding same-sex families, and such families want to live in the shadows, so there are difficulties in identifying the actual number of these families, although they are known to have up to four children.

In the course of consideration of the case, the Saeima expressed its position that the contested norm complies with the first sentence of Article 110 of the Constitution. Representatives of the Saeima and the Ministry of Justice explained earlier at the court hearing that according to the legislation, children of same-sex couples can have only one parent, therefore after the birth of a child there is no right to parental leave for a biological mother's partner.