Chancellor of Justice Ülle Madise says that whether the Supreme Court has the last word on the legal status of a bill which would enact a referendum on the definition of marriage will be clearer after the Riigikogu has voted on it, adding that the court could well hold the key to proceedings.
Madise told news portal Delfi (link in Estonian) that the result of a referendum is binding on state bodies, but that MPs can vote in accordance with their consciences.
"However, the [Supreme] court should make its decision based on the will of the people," she said.
The question in the planned referendum, as to whether marriage should be defined in Estonian legislation as between one man and one woman, could have an answer in either the affirmative or the negative and be in accordance with the Constitution, but that this would be complex to carry out in actuality.
Madise also said that if the referendum took place and the status quo remained, i.e. that marriage remained defined as a contract between a man and a woman as it currently is in the Family Law Act, neither the full implementation of the Registered Partnership Act, nor the non-recognition of same-sex marriages conducted abroad, could go ahead.
The Registered Partnership Act, often referred to as the cohabitation act, extends some legal protection and recognition to non-married couples, both same-sex and opposite-sex, but while it passed several years ago, it lacks further legislation needed to fully enact it.
Madise said thorough analysis by her office of the referendum bill's legality was ongoing.
The bill is due for its second reading but its progress has slowed down following opposition protests over how procedures were being conducted.
Ultimately, Madise said, the Supreme Court may well have the last word.
"We are making a very thorough analysis of it, and this work is already underway. /.../ The key area may end up being the Supreme Court," Madise told Delfi.
The justice chancellor also said that it was hard to imagine a referendum question where both answers, i.e. "yes" or "no", made it biding that something substantive would change.
"For example, if a referendum were to ask whether euthanasia should be permitted in Estonia, then a 'no' answer would mean everything would remain as it is," Madise said – euthanasia is currently not legal in Estonia; conversely the status quo-preserving result of the planned marriage referendum would be a "yes" vote.
Madise also said that while there are certainly societal groups currently suffering, the referendum question was an interesting topic for the country's legal experts and academics.
The referendum is scheduled for April; the bill enacting it could fail its second reading (three Riigikogu readings are generally required for bills to become full acts – ed.) if half-a-dozen or so coalition MPs vote against it, as several have either hinted that they would do, or have been the subject of speculation that they would do.
Editor: Andrew Whyte