Human Rights Should not be Subject to a Popular Vote: Lessons from Romania’s Failed Anti-LGBT Referendum
Elena Brodeala 30th October 2018

On 6 and 7 October, Romania held a referendum for the traditional family. Its purpose was to review the Romanian Constitution and define marriage as the union between a man and a woman. Its supporters framed the referendum as a way of blocking the advancement of LGBT rights and of “gender ideology” in Romania. To be valid, at least 30% of Romanians should have cast a ballot in the referendum. Despite strong mobilization by the Romanian Orthodox Church and other organizations, the turnout was around 21.1%, this led to the failure of the referendum. While this is a reason for celebration for human rights activists, the Romanian example should be a cautionary tale against deciding on human rights through a popular vote.

The low turnout came as a surprise. A 2017 study of the Pew Research Center found that 85% of Romanians believed that homosexuality should not be accepted by society and another large majority showed strong support for traditional gender roles. Moreover, all but one religious organization in Romania promoted the referendum, and all but one of the political parties represented in the Parliament asked their electorate to go to vote. Additionally, not long before the referendum, the Government issued an ordinance to organize the referendum over two days to ensure sufficient turnout.

One of the explanations for the low turnout is the fact that many voices, mainly from civil society, urged the people to boycott the referendum and not go to vote. The motivation behind these calls was the idea that human rights are nonnegotiable and should not be subject to a popular vote. However, even if some people boycotted the referendum in support of human rights, it would be naive to believe that despite the statistics that place Romania among the most conservative countries in Europe, the low turnout was primarily due to Romanians’ support for equal rights.

A large number of people boycotted the referendum for reasons other than equality concerns. One of these reasons is the antipathy towards the ruling Social Democratic Party that tried to use this referendum to derail people’s attention from its attempts to weaken the country’s anti-corruption framework. Another reason is that the referendum was perceived as a way of distancing Romania from the EU, in the context in which, just a few months before, the Court of Justice of the EU had ruled that same-sex couples married abroad have the right to freely reside in Romania. To these, one can add the belief that the Government could have directed the 40 million euro that was the cost of the referendum to a better cause or the fact that in a majoritarian Christian Orthodox country, where the Civil Code already bans same-sex marriage and the legislation does not grant any form of legal protection to LGBT couples, people did not perceive the traditional family and traditional gender roles to be in any real danger.

When Ireland held its referendum on same-sex marriage commentators warned that referendums are “not the best way to make decisions” and that the Irish referendum might “set a dangerous precedent for other nations where public opinion might not be so tolerant”. Indeed, the Irish referendum set a dangerous precedent for Romania. Although the referendum was declared invalid, this happened due to the cumulative effect of different political and social factors, and not necessarily because Romanians are strong supporters of equality. Moreover, the Coalition for Family, the group that initiated this referendum, announced that it would continue its fight to promote traditional values in Romania. Other topics that the Coalition could promote for a referendum include, as in the case of Ireland, abortion. Therefore, a serious conversation should be had on whether human rights should ever be subject to a popular vote. Referendums, after all, are meant to strengthen democracy and not to undermine it by restricting rights that are unpopular.

Author profile

Elena Brodeala is a PhD Researcher in Law at the European University Institute, Florence, Italy and was recently a visiting researcher at the Kent Center for Law Gender and Sexuality in the UK. Elena holds an LL.M. degree from Yale Law School.

Citations

Elena Brodeala, ‘Human Rights Should not be Subject to a Popular Vote: Lessons from Romania’s Failed Anti-LGBT Referendum’ (OxHRH Blog, 30 October 2018) <http://ohrh.law.ox.ac.uk/human-rights-should-not-be-subject-to-a-popular-vote-lessons-from-romanias-failed-anti-lgbt-referendum> [date of access].

Comments

  1. Daniel Dăianu says:

    This was like in Adolph Hitler’s times.

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