The justice chancellor received a letter from Isamaa MP Siim Kiisler who wanted to know whether either answer to the referendum question of whether marriage must remain a union between a man and a woman in Estonia would require any laws to be amended.

"Referendums to reaffirm the status quo are rare in Europe but not unheard of. A referendum is usually held to allow the people to vote on fundamental changes," Madise wrote in her reply.

"If the people want the recent situation to continue, it must continue," she added.

Madise emphasized that according to the Estonian Constitution, any answer given at a referendum is binding for state authorities.

"Should most people answer 'no' to the referendum question, then according to its current phrasing, marriage would no longer have to remain a union only between a man and a woman. But the answer would not mandate repealing the relevant sections of the Family Act, nor require officials, judges and other state institutions to allow same-sex marriages. The people saying 'no' would merely allow expanding on the concept of marriage," Madise wrote.

Repeal of the Registered Partnership Act not a possible consequence

The justice chancellor also emphasized that a referendum question must be constitutional in that it needs to be clear, neither misleading nor directing and that all possible answers – yes and no – must yield constitutional results, including continued compliance with international responsibilities.

"It is also clear that repealing the Registered Partnership Act or failure to recognize same-sex marriages entered into abroad in some cases cannot be consequences of the referendum," she added.

Madise said that the consequences of either answer need to be determine before the referendum is held and that she recommends doing it in the draft regulation's explanatory memo. "The memo currently does not include an exhaustive analysis of the referendum, which could provide basis for claims that a "yes" answer could bring an unconstitutional result," Madise noted.

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