a) Hungary / b) Constitutional Court / c) / d) 17-05-1996 / e) 21/1996 / f) / g) Magyar Közlöny (Official Gazette), 39/1996 / h) .
Keywords of the Systematic Thesaurus:
General Principles - Proportionality.
Fundamental Rights - General questions - Entitlement to rights - Natural persons - Minors.
Fundamental Rights - Equality - Criteria of distinction - Sexual orientation.
Fundamental Rights - Civil and political rights - Freedom of association.
Fundamental Rights - Civil and political rights - Rights of the child.
Keywords of the alphabetical index:
Homosexual, association, participation of minor.
The right of the child to be provided by the State with such protection and care as is necessary for one's proper physical, mental and moral development (Article 67.1 of the Constitution) establishes the constitutional duty of the State to protect the development of the child. This duty of the State serves as a constitutional basis for the legislature or for the courts to restrict - primarily in the public sphere - the child in the exercise of his/her fundamental rights, including the right of association guaranteed in Article 63 of the Constitution.
On the basis of the above, the child's membership in associations «related to homosexuality» can be excluded or restricted by law or in court decisions. The actual restriction on the child's exercise of his/her right of association must correspond to the concrete risk of endangering the development of the child. In the course of considering whether the right of the child to protection for his/her development may lead to a restriction on his/her right of association, the age of the child and the nature of the association has to be evaluated together. It is also important to note whether the child is able to know and evaluate the choices in connection with his/her relationship to homosexuality and the consequences of his/her choice for his/her own personality, later life and social adaptation.
The President of the Supreme Court petitioned the Constitutional Court, in the framework of abstract constitutional interpretation, to examine the fundamental rights worded in Article 67 and Article 63.1 of the Constitution. The petitioner found it to be a «concrete constitutional problem» that «the right of the child to be provided by the State with such protection and care as is necessary for one's proper physical, mental and moral development (Article 67 of the Constitution) conflicts with his/her right of association (Article 63.1 of the Constitution) if the question arises about the child's membership in an association which presents itself as an association for the defence of rights of homosexual persons as a social group».
From the point of view of the right of association guaranteed in Article 63 of the Constitution, it had to be made clear that the question in this case was not about the constitutionality of an associative aim but about the restriction on the right of association in the interests of the child (Article 67 of the Constitution). That is, the present case was not concerned with the matter of constitutionally qualifying associations of homosexual persons.
Judges are required to refuse to register social associations if their aims do not comply with conditions set forth in the Act on Associations. Among other prohibitions, they cannot result in the violation of the rights and liberties of others. This latter condition is included in Article 15 of the New York Treaty on the Rights of Children - promulgated in Act 64 of 1991 - which declares that the signatory States recognise the child's right of association.
Restricting the right of association in the interests of protecting against the violation «others' rights and liberties» is constitutional if this restriction is necessary to protect the other right and if the extent of restriction is proportionate to the desired aim. This other right has to be a constitutional right or has to be capable of being deduced from such a right. The right of the child to protection and care necessary for development excludes the child's membership in certain associations. If, according to its statutes, children can be members in such an association then the association must be held not to comply with Article 2 of the Act on Associations since this would violate the right of children guaranteed in Article 67 of the Constitution. The task of the Constitutional Court in the present decision was to determine those features of homosexual associations in respect of which the child's right to protection and care necessary for development makes the restriction on the exercise of the right of association necessary and proportionate.
Article 67 of the Constitution, which compels the State to provide protection and care necessary for the personal development of the child, requires on the one hand the prevention of clearly harmful effects and on the other hand requires the avoidance of serious risks to the child's personality and thus the whole of his/her future life.
The State has to protect the child from taking risks in respect of which, because of his/her age (presumed to correlate with physical, mental, moral and social maturity), he/she is not able to know and evaluate either the possibilities or the consequences of his/her choices for his/her own personality, later life and social adaptation. The State is thus bound as part of its duty to avert risks and to prohibit the child - at least in the public sphere - from pursuing activities or taking a stand in matters in connection with which the child is not mature enough in the above sense to develop a responsible position, since taking up a public position can prove to be decisive for the child's physical, mental and moral development and his/her later life. The risks involved are particularly increased if such a public position is related to a question which has a controversial standing in society.
The relationship between persons of the same sex - in its durable and publicly assumed form and confined to certain aspects of life - was previously recognised by the Constitutional Court, but not because the relationship was homosexual, but because the relationship was such that similar cases were elsewhere recognised by the law and the differentiation had no basis. In the course of its only judgment on homosexuality to date, the Constitutional Court remained on a neutral path, disregarding the evaluation of public morals. This neutrality was possible also in the course of interpreting the present case - in spite of the fact that the Constitution explicitly gives a right to protect the proper physical, mental and moral development of the child. There was no reason in the present case for the Constitutional Court to focus on certain questions of sexual morals instead of the protection of the child's personal development as a whole. What is more, in the present case the Constitutional Court did not even consider the problem of homosexuality to be a question of sexual morals - although it is generally regarded as such in public opinion.
The Constitution protects primarily not that decision of the child to become or not to become a homosexual, but rather assures that he/she can decide with full knowledge on the possibilities and the consequences and on how to relate to his/her discovered affections and on which role to choose from among the many social possibilities. This interpretation is in harmony with the meaning of Article 67 of the Constitution.
The Constitutional Court thus does not interpret the Constitution to say that the possibility of becoming homosexual would endanger the «moral development» of the child, because the Court cannot form a moral judgement about homosexuality on the basis of the Constitution. But it is harmful for the development of the whole personality (physical, mental, moral) and decisively affects the future of the child if he/she starts on a certain path because of the lack of maturity necessary for a decision about such vital questions.
The Constitutional Court does not qualify homosexuality from a moral point of view. In the present case, however, it cannot disregard either the peculiarities of homosexuality or the current social situation of homosexuals.
Publicly assuming homosexuality, of any kind, is an existentially decisive decision because of the current reception of homosexuality by society; socially, much is assumed, and later any change is difficult. The Constitutional Court does not qualify the problems of homosexuals in terms of social adaptation, acceptance and discrimination - which homosexuals themselves feel and experience to be more weighty than the objectively measurable social judgment - but takes them into consideration as facts to be weighed in the decision of the child.
It might prove helpful for a minor under 18 years of age struggling with homosexuality if he/she can find company in a regular framework where there are people of similar disposition and where he/she can receive psychological, medical or legal counselling if need be.
But an association of adult, practising homosexuals, one which is a part of the homosexual subculture, is different. In this context - completely excluding the criminal law aspect - there is an increased possibility that a minor whose homosexuality has not yet been fixed and who has not chosen a role, excludes his/her possibilities by a premature decision.
An association fighting actively for the rights of homosexuals does not allow for the possibility that a person might not differ completely with the heterosexual world, that a person might choose to conceal his or her sexuality or to live a «double» life as a bisexual. Membership of children in such associations is the most problematic, since this constitutes the most public commitment and thus provides hardly any possibility for different roles.
Thus, such associations have to go along with the age limit in the interest of minors of the age- group to be protected. Setting an age limit for membership primarily protects the responsible and mature decision of those who must accept the consequences of their decision for their entire life.