Constitutional considerations about the initiative “Protection of Marriage”

Constitutional considerations about the initiative “Protection of Marriage”

mw. According to Article 8, paragraph 2 of the Federal Constitution any discrimination is prohibited, as well with regard to the form of life. Andreas Glaser professor in Constitutional Law, who was consulted by the committee as an expert, concludes that the initiative “Protection of Marriage” does not violate the ban on discrimination. Because even in case of a Yes to the initiative Article 13 paragraph 1 of the cantonal constitution. “guarantees the right of every human being further on to choose the form of cohabitation he wants to live in.” Any discrimination intent on the part of the initiators is missing: “They do not want to put other forms of life in a worse position, but to emphasise the socially desired function of marriage by using an exclusive naming for the life-long partnership of man and woman.” (Opinion Glaser, p. 12 / 13)1

The Initiative reaffirms the fundamental right to marry and have a family

Cantonal popular initiatives are valid only if they are not contradicting superior law. Especially with regard to the “Protection of Marriage” initiative, the question arose whether its content is contrary to the scope of the Federation concerning civil law (Article 122 paragraph 1 of the Federal Constitution). The marriage law is set in the Swiss Civil Code (ZGB); there, the cantons have not to step in. But according to Professor Glaser the initiative does not concern with civil law (private law), but rather with fundamental rights, so it is rather to be assigned to public law. (Opinion Glaser, p. 8)
Fundamental rights are part of the public law, because they give a legal claim to protect the human person and her dignity against the state. So, the protection of marriage and family is guaranteed in the Constitution (Article 14) as a legal claim against the State (Federal, cantonal and municipal). (In contrast to this are claims under private law for example against a contractor or also against the spouse).
There is nothing extraordinary, if fundamental rights are guaranteed in the Cantonal Constitutions and in a similar way in the Federal Constitution. So we find the human right “human dignity shall be inviolable” for example, in article 9 of the Zurich Cantonal Constitution and in article 11 “all people are equal before the law.”
By listing these central fundamental rights in the cantonal constitution, their importance is emphasised by the Zurich legislators. The initiators aim exactly at this if they want to bring the principle that “Marriage is the life-long and regularised partnership of man and woman” into the Constitution.

Scope of the cantonal legislature

The Zurich Government Council writes in the voting booklet, that the initiative “Protection of Marriage” is also “to be rejected for legal reasons” because the definition of the concept of marriage belongs to the federal level. Current Concerns asked Constitutional law professor Andreas Glaser: “Is this statement legally tenable?” Prof. Andreas Glaser: “Well, you rightly point the contradiction appearing at the first glance out. The initiative is valid, because it does not violate federal law. Looking at it in a bigger context the State Council probably thinks that it is politically not really useful to define the concept of marriage in the cantonal law. The Civil Code is leading here in practically all relevant areas. On the other hand there is a cantonal scope in the perspective of fundamental rights, in particular what would concern also promotion measures of the canton.»

In dubio pro populo (when in doubt, for the people)

Particularly noteworthy are the judgements of the Swiss Supreme Federal Court concerning the obligation of the authorities to interpret the texts of popular initiatives. They shouldn’t lightly be assessed as illegal, but possibly as valid: “Within different options to interpret, those shall be selected which best correspond to the sense and purpose of the initiative and lead to a reasonable result and which appear on the other hand as compatible with the meaning of the constitutional interpretation of the parent legislation of federal and cantonal law.” (Federal Court decision BGE°I39°I 292, considering 5.7, p. °296) Or in the words of Professor Glaser: “As long as a referendum a people’s initiative / popular initiative is not obviously inadmissible, it is to be declared as valid and to be subject of a referendum.” And he adds: “The Federal Court proceeds ‘specifically after the principle in dubio pro populo’ and choses the alternative closest to the initiators intend with a view on the compatibility with the parent law.” (Opinion Glaser, p. §59)
Good to know! In the future this provides more steadfastness to us as citizens against the cantonal authorities, who tend to declare people’s initiatives, which do not fit their plans as invalid with vast and played up “reasons”    •

1     Prof. Dr. Andreas Glaser, Chair of State, Administrative and European Law at the University of Zurich, opinion on the validity of the cantonal popular initiative “Protection of marriage” dated 22 December 2014

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