Chancellor of Justice Ülle Madise said on Thursday the result of any potential referendum on marriage would be binding on state bodies and it is not advisable to hold a referendum on the same day as a local election.
Madise was responding to a question from head of the Lutheran church in Estonia, Archbishop Urmas Viilma , as to how it might be possible to secure a marriage as being defined as a union between a man and a woman in a referendum - as already stated in the Family Act - without amending the constitution.
Madise replied that if a referendum were held in Estonia, for example, with the question "Should marriage remain a union between one man and one woman?", the position supported by the referendum result would be binding.
"If the majority of those who took part in the referendum answer 'yes', it is not permitted to change the definition of marriage in § 1 (1) of the Family Code without a new referendum. Such an amendment would be unconstitutional, due to violation of the second sentence of § 105 (3)," she wrote.
If the majority of the participants in the referendum answer the question negatively, the Riigikogu may also amend the definition of marriage contained in the Family Law Act.
Madise said a referendum may be held on a draft amendment to the constitution or on a matter of national issue. If the question is answered clearly, the answer can be viewed as a mandate for state bodies.
The archbishop also asked the justice chancellor whether a referendum on national issues should be held before the city and rural municipality council elections.
"Should the referendum also be held separately from the local government elections of 2021? When can the referendum be held from a legal point of view, at the earliest, in such a case?" asked Vilma.
Madise replied that according to § 3 (1) of the Referendum Act, a referendum on a national issue cannot take place earlier than three months after the entry into force of the corresponding resolution of the Riigikogu.
"Among other things, a significantly different circle of persons entitled to vote speaks in favor of organizing a referendum and local government council elections on a separate day," she said.
All permanent residents of Estonia over 16 years of age, including citizens of other countries and persons with undetermined citizenship, plus citizens of other EU member states, have the right to vote in local government council elections.
However, only citizens of the Republic of Estonia aged over 18 may vote in a referendum.
"This means that holding local elections and a referendum on the same day will lead to voter segregation and, with it, likely a lot of confusion. Especially in a situation where public attention and campaigning are primarily focused on the national issue," she wrote.
Madise also said the election and referendum must be organized differently, meaning two separate elections would take place on the same day.
"Inevitably, this will impose a double burden on the state budget and the state and local government agencies forming the election commissions. The same issue has been addressed in more detail by the National Electoral Committee," the Chancellor of Justice noted.
Editor: Helen Wright