Open letter from the Latvian Jurists’ Association

To the President of the Republic of Latvia
To the Prime Minister of the Republic of Latvia
To the Minister of Justice of the Republic of Latvia
To the Chair of the Constitutional Court of the Republic of Latvia, “Unity”, ZZS, SC, VL
To the Human Rights Commission of the Saeima of the Republic of Latvia
To the Presidium of the Saeima of the Republic of Latvia
To the Saeima Committee on Children and Youth Affairs
To the State Inspectorate for Protection of Children's Rights

open letter.

Riga, May 23, 2011

Responding to the President's invitation to discuss regulation of same-sex couple partnerships and having become acquainted with the package of draft laws on registered partnerships that has come into our possession, we wish to express our opinion and categorical objections to the legalization of homosexuality and its equation with the traditional institution of family and marriage.

Both Latvia's internal regulatory acts and the prevailing public opinion support traditional family values - marriage between a man and a woman as the only form of marriage and family model. International regulatory acts also give Latvia complete freedom to define the institutions of family and marriage, therefore these questions depend only on the sovereign will of the Latvian people, and there is no basis for referring to any Latvian obligations arising from international commitments.

According to official SKDS data, the majority of Latvian society (74% - data as of October 2010) does not support homosexuality, supporting the traditional family model. Therefore not only legal acts, but also Latvian society, do not agree with equating a non-traditional family model with the traditional one, and even more so with legalizing it by equating it with the natural family model.

Although in the public space the initiators of the registered partnership draft law, representatives of “Mozaika”, claim that they want to solve “only property issues” in the law, legally the law touches a range of other, much broader issues of civil, administrative and public law, involving surname changes, giving testimony, relations with new “relatives”, dissolution of partnerships, social services, pensions, patient rights and other questions. All these questions affect partners' relatives, relatives' children and society as a whole. Moreover, the Registered Partnership Law is contradictory in essence, beginning with the lack of a definition of “partnership”. Are the initiators of the draft law talking about partners in a tennis game, business partners, or partners in stable family relationships? This is not understandable from the text of the draft law. A question also arises about the legalization of de facto relationships of heterosexual couples. If this draft law were adopted, the rights of heterosexual couples who are not married would in fact be restricted in comparison with registered homosexual couples. Homosexual couples would be placed in a more privileged position.

As a result, an open, unconstitutional and purposeful attempt is being made to undermine the traditional family model already at the legislative level. And it is only a matter of time before amendments related to adoption of children are proposed, which persons connected with “Mozaika” have long declared.

In Latvia marriage and family are legally and officially defined concepts:

1. Article 110 of the Constitution provides that the state protects and supports marriage - a union between a man and a woman, the family, and the rights of parents and children;
2. Article 35 of the Civil Law and, in general, the Civil Law as a whole, as well as all other Latvian regulatory acts concerning the family, speak of the family as a union of a man and a woman.

When thinking about the concepts of marriage and family, first of all the will of the legislator contained in Article 110 of Latvia's basic law, the Constitution, and the functional meaning of this article must be taken into account.

Amendments to Article 110 of the Constitution were adopted in 2005 with the aim of preventing the legalization of same-sex marriage in Latvia. In Saeima debates, deputy Inese Slesere emphasized: “By supporting these amendments to the Constitution, we will strengthen the barrier that protects families from various hostile and destructive tendencies. Marriage is much more than a civil or legal contract. Regardless of the opinions expressed by different parties, marriage between two loving representatives of the opposite sex is the social institution that best corresponds to the interests of the state, to the bearing and upbringing of children. Therefore I too hope that Latvia will not in the near future join the number of countries where this parody of the family - same-sex marriage - is possible.” Kārlis Sadurskis also admitted in the debates: “We support the kind of family that is necessary for our people's viability and normal moral and ethical development.”

Studying the functional meaning of Article 110 of the Constitution, it can be concluded that the purpose of the constitutional amendments was and is to defend marriage - the union of a man and a woman - as one of the fundamental values of the existence of society and the state. Thus, by the Saeima vote, a direct constitutional restriction on the official forms of marriage and family in Latvia was established in the Constitution; that is, the legislator exclusively determined that only a union between heterosexual couples is considered marriage and family, excluding the legalization of same-sex partnerships and their equation with marriage. Article 116 of the Constitution provides that the rights set out in Article 110 cannot be restricted (as may happen in exceptional cases with other rights). And this further confirms the fundamental meaning and legal force of Article 110.

Unfortunately, “Mozaika” representative Linda Freimane publicly expresses a view degrading moral values, saying that “it is not important to us what the legal act is called; what matters is that the state recognizes this union between two [same-sex] people”. As long as a constitutional-rank norm, by its meaning, protects heterosexual marriage, legalization of homosexuality is legally impermissible. The draft law on registration of partnerships and all other acts derived from it are unconstitutional, and their adoption would undermine both the significance of the Constitution, which reflects the expression of the will of the Latvian people as sovereign, and public trust in the Saeima and Latvian politicians as a whole.

Everyone must respect the traditional family values accepted in Latvian society and the interests and rights of these families not to be disturbed. The infringement of traditional families in this case would manifest itself in several ways:
1. moral norms would be undermined, including the value and definition of family;
2. by popularizing and legalizing homosexuality, children's and young people's view of family would be influenced, thereby increasing the possibility that a child will decide to try and practice homosexual relationships;
3. Latvia's demographic situation would be worsened, because propaganda and legalization of homosexuality reduces the birth rate.

The European Court of Human Rights has indicated that homosexual relationships, although stable and lasting, are not considered family relationships within the meaning of the European Convention on Human Rights and Fundamental Freedoms (X. v. United Kingdom, European Commission, Application 9369/81, (1983) 32 Decisions & Reports 220). Therefore only a union between a man and a woman can be considered family relationships, whether officially married or not.

In the judgment Rees v. The United Kingdom, application no. 9532/81, judgment delivered on 17 October 1986, the court indicated that the purpose of founding a family is the creation of descendants. Article 12 of the European Convention on Human Rights and Fundamental Freedoms provides that men and women of marriageable age have the right to marry and found a family according to national laws. The court indicated that the purpose of founding a family is the creation of descendants [which is especially relevant for Latvia today]. Therefore it can be concluded that in 21st-century legal understanding the purpose of the family is the creation of descendants, but the existence or absence of descendants is not decisive, because both relationships created by a woman and a man entering lawful marriage and relationships between a man and a woman with the intention of creating a family (actual family or de facto family) are considered family.

The norms included in European Union legal acts do not define the concept of family from a civil-law aspect. The Hague Programme for strengthening freedom, security and justice in the European Union provides that a harmonized definition of the concepts “family” and “marriage” may not be included in European Union legal acts. Latvia's official state position regarding this fact is positive, because in this way each member state (including Latvia) can preserve “its historically established regulation in these areas”. In Latvia, conservative regulation of marriage and family has historically developed.

Homosexually oriented persons currently have a number of legal instruments for regulating their relationships, including property relations. Partners may conclude civil-law contracts - donation, purchase, maintenance agreement, will, etc. - that would “regulate” their property relations. Therefore a separate Partnership Law and amendments to other laws are not necessary. Speaking about conflict-of-interest cases, law appliers are guided by general principles of law as a legal source in a democratic state, therefore special positivized legal regulation is not necessary (it should be remembered that the total mass of regulatory acts in Latvia is increasing).

We stand for observance of international and constitutional law, promotion of traditional family values, and do not support the legalization and popularization in Latvia of a morally degraded idea that levels down the value of the family institution. Latvia's future lies in strong and morally healthy families that can create children.

On the basis of common sense, Articles 1 and 110 of the Constitution, Articles 8 and 12 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and point 3.4.2 of the Hague Programme for strengthening freedom, security and justice in the European Union,

we ask and call for:

1. Recognizing the package of registered partnership laws as unconstitutional, that is, not corresponding to Article 110 of the Constitution;
2. Not supporting the draft Registered Partnership Law and any other draft laws that undermine the institution of the traditional family;
3. Doing everything possible to strengthen the family institution and observance of children's rights in Latvia.

With true respect,
Aivars Borovkovs
President of the Latvian Jurists' Association
Gvido Zemribo
Vice President of the Latvian Jurists' Association

The Hague Programme for strengthening freedom, security and justice in the European Union.
www.tm.gov.lv