Zoltán Bretter's essay deals with Hart and Devlin's argument about the relationship of morals and law. He shows that the two debating legal philosophers are of the same opinion on that society is held together by its moral agreement, whereas in lack of such agreement society falls apart They also agree on that falling apart can be prevented by the law obtaining society's moral code by force. However, for Devlin this means that moral consensus has to be enforced by law, whereas for Hart it means that moral pluralism has to be protected by law.
Fundamentum publishes Chapter 8 of the book of Cass R. Sunstein: Designing Democracy: What Constitutions Do? The topic of the chapter is the homosexuality and the Constitution. Sunstein in his writing argues that discrimination on the basis of sexual orientation is a form of discrimination on the basis of sex, and bans on same-sex marriage have very much the same connection to gender caste as bans on racial intermarriage have to racial caste. Same-sex relations and even same-sex marriages therefore could not be banned consistently with the equal protection clause, but the Supreme Court in this field should start cautiously and proceed incrementally.
Nelius Carey in his article From Obloquy to Equality: In the Shadow of Abnormal Situations published originally in the Yearbook of European Law analyses the Western case law and the approaches of the European courts in Strasbourg and Luxembourg on the rights of homosexuals. Carey argues that although the various western courts, the ECJ and the ECHR have helped to move the debate on the legal protection of gays and lesbians forward, they can only modify the law and change societal opinion to a certain point; society must also contribute to this process.
In his writing 'The self-protecting democratic state" András Sajó seeks an answer to what means the constitutional state has for self-protection. Emotional street-politics, racism, corruption threaten the current Hungarian constitutional system, says Sajó, and the state's means are inefficient to deal with them. The strengthening of police power, and the facilitating of repression cannot present a solution. So the question is if there is a democratic solution which can serve the protection of the constitutional state in a preventive way; and if so, what is it.
How can you call something created by nature something "against nature'?", asks László Láner, editor of Mások ("Others"), a magazine for gays, in Eszter Rádai's interview. Concerning the public opinion and the role of politics in it he admits that formerly he thought laws to be very important, and what politics must do is to make good laws, although basically this depends on public opinion, public thinking and public mood. However, under the Orbán-cabinet the number of the malignant grew so spectacularly that he had to change his mind. Previously no conflict, atrocity, or rudeness had been experienced during the annual gay parades of the last seven years. Last year, however, various social organisations and churches protested against the parade passing through Heroes' Square, before the monument of the great figures of the Hungarian past. Then a small group of young people wearing an arm-band awaited the gay parade with the notice: "Otherness go somewhere else!" The nadir, however, was the report of the Hungarian Television's news programme, with biblical quotations about the "disgusting nature" of homosexuality. "Not as if the Orbán-cabinet directly set people against us", says Láner, "but by excluding everybody from among 'citizens', who was not one of them, who was an odd one out, who belonged
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to a minority, they encouraged many people who had previously born malice as private persons, as they felt they had politics and power in their backs. This is the responsibility of politics: it can stir up dirt, just as it can settle it."
On this occasion we asked for the opinion of people undertaking their different sexual identity, about the social opinion as regards homosexuality, and the legal regulation concerning gays. In his writing Balázs Birtalan deals with the approach of the Catholic Church, concluding that with reference to natural laws the official teaching of the Roman Catholic Church categorises homosexual acts as morally evil ("sin"). At the same rime the catechism issued in 1992 tries to word its teaching in a subtle way as regards homosexual people. Birtalan recites the failure of their effort to establish a dialogue with the Hungarian clergy, and to make the Church modulate its strict approach. Lajos Romsauer is of the opinion that the basic conflict concerning opinions about homosexuals is the irreconcilability of private life and the norms restricting the freedom of the individual. He points out that law can create the possibilities for people with a sexuality different from that of the majority, to really live their lives equally, without discrimination, and preserving their human dignity. However, in his experience we are still far from reaching tolerance today, both as regards social norms, and in legal regulations. Péter Radics writes about his reasons for "coming out", stepping in the spodights and undertaking his homosexuality, being a well-known figure of Hungarian Television. As he put it, what fills him most with pain and resistance is when his fellow homosexuals decide to live a compromising and untrue life. This is what is really unworthy - of Hungarians, Europeans, homosexuals - of ourselves.
In this column the readers will find commentaries on three judgments. On 3[rd] September, 2002, and with the separate opinions of two constitutional judges, the Hungarian Constitutional Court quashed the regulations of the Criminal Code on sodomy and forcible sexual perversion against nature. The decision is commented on by Judit Takács, Renáta Uitz, Borbála Garai and András Schiffer.
On the occasion of the Constitutional Court's decision Judit Takács writes about what sodomy means in Hungarian legal language, how and what types Hungarian criminal law has punished. It become clear from her essay that in Hungarian legal literature the theory appeared back in the 19[th] century, which urged the modern state to extend the principle of non-intervention to the privacy of citizens to homosexuals.
Renáta Uitz draws attention to the fact that on the basis of a relatively strict test the Strasbourg Court has examined criminal provisions banning consensual same-sex fornication in general, as restrictions on private life and the freedom of privacy. This approach, although per se it does not exclude the legal prohibition of sexual perversions against nature, sets higher demands as the so called reasonableness-test, employed by the Hungarian Constitutional Court in the September decision. This, in turn, hides a possible conflict with the jurisprudence of the European Court of Human Rights.
In her writing Borbála Garai argues that since the Constitutional Court has not quashed the crime of seduction of the Criminal Code, it has upheld one difference in its legal approach of sexual forms. According to current regulations, if a person under 18 commits sodomy with a person under 14, the act is not punishable, that is,
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it is not viewed as seduction. However, in case of a sexual intercourse between the same persons the elder is to be punished for seduction. By not examining the petition concerning seduction, the Constitutional Court has left a question open: can the legislator punish sodomy with stricter sanctions than rape? Docs this not mean the indirect discrimination of homosexual people?
In András Schiffer's opinion the Constitutional Court should have made its decision on the basis of the so called necessity and proportionality test. The §199 of the Criminal Code bears conflicts of basic rights in many aspects. In the first place because this paragraph restricts the right of choosing a sexual partner for 14-18 yearolds. In the second place, the "state of dependency" can also restrict the right of sexual self-determination. In the third place the discriminative fixing of protected age meant the further restriction of the right of sexual self-determination for homosexual persons.
In this column we issue the decision of the Court of District II and III in the so-called Tarlós-case, which invalidated the agreement between the Óbuda local government, the Sziget Cultural Organising Office, and the Budapest Police-office, which prohibited homosexual programmes in order to protect people under age, and also people thinking differently on Pepsi-island. The decision is commented on by József Kárpáti, lawyer of the Háttér Gay Friendly Association.
Finally in this column we present the decision of the Pest Central Court of District, which was summoned by several plaintiffs in part against the eliminative writings of Lóránt Hegedűs Jr. and István Csurka in the newspapers Ébresztő and Magyar Fórum. The claimant was of the opinion that these writings offended the human dignity of Jewish people living in Hungary. However, the decision of the court found that the claimant being a member of the community concerned does not give efficient basis for acting as a claimant. The decision is commented on by Gábor Halmai, who holds that the court's decision can primarily be traced back to the fact that the acting judge based his decision on not binding legal opinions of the Supreme Court.
How do sexual minority rights succeed, and how are they judged in the practice of the two legal forums: the European Court and the European Court of Human Rights? 'This is summarized by the column's three writings by Petra Jeney, Bea Sándor and Tamás Bán. We also present former decisions of the German and Austrian Constitutional Court in this field. We sum up the latest, more interesting decisions of the Constitutional Court, and issue the sentence delivered against the barman in Patvarc in a case concerning race discrimination.
In this article we publish the writings of two gay organisations and a lesbian association. Ildikó Solymár gives account of the programme "Lesbianism and Recognition" of the Labrisz lesbian association, during which they tried to dispel the prejudice against lesbians, bisexuals and transsexuals by holding lectures in secondary schools. In their experience the worries of schools and the media were needless, and homosexuality could safely be debated in schools. As a continuation of the programme in April 2002 Labrisz published Már nem tabu. Kézikönyv tanároknak a melegekről, leszbikusokról, biszexuálisokról és transzneműekről ("No Taboo Any
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More. A Handbook for Teachers About Gays, Lesbians, Bisexuals and Transsexuals"), a book which has been ordered by seventy institutions in six months. László Mocsonaki, leader of the Háttér Gay Friendly Association states that members of the lesbian, gay, bisexual and transsexual communities are victims of direct or indirect discrimination in different fields of social life - work, private life, social security, etc. In this way there is need for an anti-discrimination law, which includes sexual orientation, and also for an independent body to help the discriminated. In his writing together with Eszter A. Tímár, Géza Juhász, leader of the Habeas Corpus Working Group is of the opinion that the state recognition of gay, lesbian, transsexual and bisexual people as a sexual minority, the institutionalisation of their representation on the one hand would not be principally supportable, on the other hand would nor provide an effective way to remedy the wrongs of these communities. He believes that the results in the field of homosexual rights have not been the results of some human programme. Behind the law modifications pointing towards homosexual equality, and the favourable changes in legal practice there is no intention of state action against die oppression of homosexuals.
Ferenc Kőszeg, leader of die Hungarian Helsinki Committee examined the new provisions on asylum in his writing. The staff of the commission visited four custodies where foreign citizens are detained, and on the bases of their experience there, the decisions of the immigration organs, and court decisions they concluded among others that: "who is taken into custody among asylum seekers and who is not, is not really a question of a founded plea, or of the honest or foul behaviour of the applicant, but the question of chance and luck or else - in the most favourable case - of humanitarian considerations. The obligatory judicial approval in turn legitimises the legal uncertainty more than prevents it."
In this column we present two recently published volumes. The book The Defence Counsel, and the volume containing the answers of the Hungarian Civil Liberties Union given to questions concerning human rights, which is titled Individual Rights and the Public Good. ■
Visszaugrás
