Same-Sex Partnership Policy Debates in Croatia and Slovenia

Südosteuropa 59 (2011), H . 1, S . 25-49

ROMAN KUHAR

Resisting Change: Same-sex Partnership Policy Debates in Croatia and Slovenia

Abstract. This article explores similarities and differences in the emergence, content, and effects of the policy debates on same-sex partnerships in Slovenia and Croatia . Using the Critical Frame Analysis, the article discusses how bills concerning same-sex unions were framed in parliamentary debates in both countries . Despite the different histories of the gay and lesbian movements and the somewhat different political/cultural backgrounds of both countries, no major differences were found in the discourses employed in the parliamentary debates on same-sex partnerships . Generally, five major themes have been defined in these debates in both Slovenia and Croatia: the human rights/equality frame is typically used by the proponents of the bill, often accompanied by the Europeanization frame . An understand- ing of such legislation as a threat to the family and nation is reflected in the frame of nature and the nationalist frame, whereas the exercise of power of the majority over the minority is reflected in the public opinion frame .

Roman Kuhar is a professor of sociology of culture at the Faculty of Arts at the University of Ljubljana .

Introduction

The three main political discourses that have defined gay and lesbian politics in Western Europe and North America in the past decades are: efforts to achieve increased visibility, the establishment of equal rights, and the struggle for full citizenship 1. Touching all three, the legal recognition of same-sex partnerships and families has been one of the main objectives in this realm since the end of the 1980s . Different forms of legalizing same-sex partnerships, including registered and unregistered partnerships, cohabitation, and civil and de facto marital unions, have been adopted in Europe by the following countries:2 the

1 Christina Klesse, Deconstructing Political Discourse, Queering Politics: On the Structural Limitations of the Current State of Sexual Politics . Paper Presented at the Conference “Europe Without Homophobia”, Wrocław, 24 May 2004, unpublished . 2 The number in brackets represents the year of adoption of the respective legislation . Multiple numbers denote the sequence of adoption and amendments . For the contents of 26 Roman Kuhar

Netherlands (1979, 1998, 2001), Sweden (1988, 1994, 2003, 2009), Denmark (1989), Norway (1993, 2008), Iceland (1996, 2010), Hungary (1996, 2009), France (1999), Belgium (2000, 2003), Germany (2000, 2004), Finland (2001), Portugal (2001, 2010), Austria (2003, 2009), Croatia (2003), Luxembourg (2004), Great Britain (2004), Switzerland (2004), Spain (2005), Slovenia (2005), Andorra (2005), Czech Republic (2006), and Ireland (2010) . The variety of legal institutions designed for same-sex couples in the European Union (EU) and the fact that some member states – predominantly those in East- ern Europe – do not grant any legal recognition to same-sex partnerships, cause several problems . One of these problems is the infringement of the right of EU citizens and their family members to move and reside freely within the territory of all EU member states 3. Because the Directive on the right to free movement (2004/58/EC) defines the family member as a ”spouse”, same-sex couples have limited rights in this regard, as they are not recognized as spouses . The right to free movement is granted only if a registered same-sex partnership is formed in a member state and if the country to which the partners wish to move legally recognizes the partnership as an equivalent to marriage . A married Dutch lesbian couple enjoys the same rights (and obligations) as a married Dutch heterosexual couple . If the heterosexual couple moves to Italy for work, study or any other reasons, it continues to enjoy all the rights of a married heterosexual couple . However, if the Dutch lesbian couple moves to Italy, their partnership is not recognized and does not provide them with any associated rights . In the EU, issues such as marriage and partnership are understood to be under national legal jurisdiction, and hence are outside the powers of the EU . Article 9 of the EU Charter of Fundamental Rights states that “the right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights” .4 Article 9 neither prohibits nor requires the member states to grant equal status to same-sex partnerships . In most of the EU member states, the adopted legislation established a separate legal institution for same-sex couples – such as “registered partnership” – although the rights and obligations ascribed to same-sex couples vary from one country to another . In Europe, there are currentlyseven exceptions: Iceland, the Netherlands, Spain, Portugal, Norway, Sweden and Belgium generally do not the individual acts, see Marriage and Partnership Rights for Same-sex Partners Country by Country, available at . All internet sources were accessed on 4 May 2011 . 3 Mark Bell / Mateo Bonini-Baraldi, Lesbian, Gay, Bisexual and Transgender Families and the Free Movement Directive: Implementation Guidelines . Brussels 2008, available at . 4 Charter of Fundamental Rights of the European Union, available at . Same-sex Partnership Policy Debates in Croatia and Slovenia 27 differentiate between the rights and obligations of heterosexual or homosexual married couples 5. In all other countries, the legislation regulating same-sex partnerships is still discriminatory, for it puts gay and lesbian couples on an inferior legal footing as compared to heterosexual couples . There can be substantial differences between the legal institutions of a registered same-sex partnership and a marital union, as illustrated by the Croatian Same-sex Partnership Act . In Croatia, same-sex couples are granted only 2 % of the rights ascribed to heterosexual married couples 6. The majority of the legislation concerning same-sex partnerships in the EU maintains the status of same-sex couples as second-class citizens . Furthermore, it seems that the mainstream gay and lesbian movement, which is engaged in a painful struggle to achieve at least some rights for same-sex partnerships, sometimes ignores (or feels forced to ignore) the discriminatory nature of such legislation 7. In the context of the former Yugoslav republics, Slovenia and Croatia are the only states where policy debates on same-sex partnerships have resulted in the recognition of limited rights for same-sex couples . Together with the Czech Republic and Hungary, Slovenia and Croatia are the only Eastern European countries where such legislation has been adopted . It cannot be denied that the political agenda of the Western European and even the global Lesbian, Gay, Bisexual and Transgender (LGBT) movement, as well as the media coverage of the movement’s legal victories, have influenced the local Croatian and Slove- nian movements, their agendas and, ultimately, their achievements . However, this is not to say that such effects are not visible in other former Yugoslav republics . Policy debates on same-sex partnerships do exist in these countries, especially in Serbia and – to a lesser extent – in Bosnia and Herzegovina . In both countries, the existing gay and lesbian movement is pushing for legisla- tive changes . Although several anti-discrimination clauses were adopted in the Serbian and Bosnian legislatures, there are no prospects as of yet for changes in the definitions of marriage and family . Furthermore, public events organized by non-governmental LGBT organizations, such as the 2001 and 2010 Pride Parades in Belgrade and the 2008 Queer Festival in Sarajevo, have been brutally

5 In Portugal, same-sex couples are not granted adoption rights, but they can get married . Great Britain could be listed among these countries as well, as the rights and obligations of married heterosexual partners are equal to those of registered same-sex unions . However, Great Britain has established a separate legal institution for same-sex couples . Furthermore, in the legislation of the countries listed above, minor differences between homosexual and heterosexual marriages still exist . 6 Sanja Juras / Kristijan Grđan, Croatia, in: Chuck Stewart (ed .), The Greenwood Ency- clopedia of LGBT Issues Worldwide, vol . 2 . Santa Barbara/Ca . et al . 2010, 79-100, 81. 7 Roman Kuhar, Hoč’va ohcet: O nezadostnosti registriranega partnerstva, in: Zdravko Ko- be / Igor Pribac (eds .), Prava poroka? 12 razmišljanj o zakonski zvezi . Ljubljana 2006, 107-134 . 28 Roman Kuhar disrupted by nationalist and religious groups, as well as other extremists .8 In Belgrade, after two unsuccessful attempts in 2001 and 2009, the Pride Parade finally took place in October 2010 . The Parade itself – which aimed at increasing the visibility of LGBT people in Serbia – did not receive much media coverage . Journalists rather focused on the violence taking place during the Parade . An estimated 6,000 protesting hooligans clashed with the 5,600 policemen protect- ing the march and demolished and burned several cars, buses and stores, as well as the headquarters of left-wing political parties .9 This article explores similarities and differences in the emergence, content, and effects of the policy debates on same-sex partnerships in Slovenia and Croa- tia 10. It sketches the specific political contexts and the different histories of both countries’ gay and lesbian movements, and then focuses on how the same-sex partnership issue has emerged in policy debates and which discourses framed discussions in the parliamentary readings of the respective bills . The role of the EU, including its legal measures and its existing legal institutions for same-sex partnerships, is also touched upon . In particular, this essay examines how EU institutions have influenced the construction and representation of same-sex partnership in policy debates in Slovenia and Croatia .

Methodology

The Critical Frame Analysis (CFA) has been used to critically reflect ways in which policy problems and their solutions are defined in policy documents .11 The CFA also identifies the effects of so-called “strategic framing”, which Carlo Bacchi defines as a conscious usage of language in order to influence political

8 Diana Miladinović et al ., Labris čitanka: Od A do Š o lezbejskim i gej ljudskim pravima . Belgrade 2009, 77-102; The Status of Lesbian, Gay, Bisexual and Transgender Rights in Bosnia and Herzegovina: A Shadow Report (2006), available at . 9 According to the Serbian Ministry of the Interior, 141 persons were injured and 207 detained . After the Pride Parade, Belgrade major Dragan Đilas remarked: “The city is totally demolished, but what is really important is that not a single life was lost today .” The hooligans caused damages estimated at one million euros . Parada ponosa završena, huligani pljačkali grad, uhapšen vođa “Obraza”, Blic Online, 10 October 2010, available at . Cf . the official website of the Pride parade, available at . 10 This article is based on research results from the 6th Framework Programme Integrated Project QUING (Quality in Gender + Equality Policies); details are available at . 11 Mieke Verloo, Mainstreaming Gender Equality in Europe: A Critical Frame Analysis, The Greek Review of Social Research 117 (2005), B, 11-32, available at . Same-sex Partnership Policy Debates in Croatia and Slovenia 29 debate and decision-making 12. In the context of the CFA, a frame is understood as an “organizing principle that transforms fragmentary or incidental information into a structured and meaningful problem, in which a solution is implicitly or explicitly included” .13 For the purpose of this article, the transcripts of the parliamentary readings of the Croatian Bill on Same-sex Partnership of 9 July 2003 and the Slovenian Bill on Registered Same-sex Partnership of 17 June 2005 have been analyzed . Both documents have been coded with closed and open codes on the basis of ”sensitizing questions”,14 in order to answer questions such as the following: Which problems are defined in the documents? How are they defined (the diagnosis)? Which solutions to the identified problems are suggested (the prognosis)? What is seen as the cause of the problem, and who is affected by it? Where are the problem and its solution located (for example, in the realms of the polity, intimacy, economy etc .)? What are the nderlyingu norms? The coded information (story grammar of the text) represents markers . The list of frames was constructed through the combination of different markers .15

County-specific contexts

Although there are some similarities between the two countries – for example, both countries decriminalized homosexuality in their Penal Codes in 1977 – there are also some important differences that affected how and when the issue of same-sex partnerships entered policy debates . Slovenia has never differentiated the age of consent; the decriminalization of homosexuality in 1977 brought about a unification of the age of consent for heterosexual and homosexual relations set at the age of 14 . That was not the case in Croatia, where the age of consent was set at 14 years for heterosexual relations and 18 years for homosexual relations . Equalization came about with amendments to the Croatian Penal Code in 1997 . The gay and lesbian movements in Croatia and Slovenia have also experienced differing paces of development . Unlike in the West,the movements have devel-

12 Carlo L . Bacchi, The Issue of Intentionality in Frame Theory: The Need for Reflexive Framing, in: Emanuela Lombardo / Petra Meier / Mieke Verloo (eds .), The Discursive Politics of Gender Equality: Stretching, Bending, and Policy Making . London, New York 2009, 19-35 . 13 Verloo, Mainstreaming Gender Equality in Europe (above fn . 11), 20 . 14 Idem / Emanuela Lombardo, Contested Gender Equality and Policy Variety in Europe: Introducing a Critical Frame Analysis Approach, in: Mieke Verloo (ed .), Multiple Meanings of Gender Equality: A Critical Frame Analysis of Gender Policies in Europe . Budapest, New York 2007, 21-49 . 15 For more on the methodology used in the QUING project cf . Tamás Dombos et al ., Criti- cal Frame Analysis: A Comparative Methodology for the QUING Project, Paper Presented at the ECPR First European Conference on Politics and Gender at Queen’s University Belfast, Northern Ireland (21-23 January 2009), available at . 30 Roman Kuhar oped only in the period after the decriminalization of homosexuality . For that reason, in both countries, decriminalization itself was never a part of gay and lesbian initiatives 16. Rather, both movements quickly moved from demands for anti-discrimination measures to prioritizing the legal recognition of same-sex unions . The gay and lesbian movement in Slovenia and Croatia (and, to a large extent, also elsewhere in Eastern Europe) experienced a “condensed” version of the development in the West . The latter is however only moderately true for Slovenia, where the first gay organization, Magnus (named after the German scientist Magnus Hirschfeld), was established in 1984, followed in 1987 by the first lesbian organization, LL (Lesbian Lilith) . These two organizations were not only the first ones of their kind in Slovenia and former Yugoslavia, but also in Eastern Europe as a whole . They were established in the context of the spirited Slovenian social movements of the 1980s, such as the peace and the feminist movements, ultimately contributing to the demise of the political system in the early 1990s 17. By the 1980s and early 1990s, then, Slovenia was confronted with anti-discrimination demands from the gay and lesbian movement (and supporting social movements), leading to the gradual incorporation of the same-sex partnership issue into its political agenda 18. In Croatia, policy debates on both anti-discrimination issues and same-sex unions started more or less simultaneously . Although the first lesbian group – Lila Initiative – was founded in 1989 as part of the Croatian feminist movement and was followed by the gay and lesbian group LIGMA in 1992, both organizations quickly dissolved without having had any visible effect on public percep- tions of homosexuality . In 1997, another lesbian organization, called Kontra, was established, but the breakthrough of the movement came only in 2002 – more than fifteen years after the gay movement had started in Slovenia . In that year, several organizations – Kontra, Iskorak and Lori – started organizing events aimed at public recognition of the community, including the first gay and lesbian

16 The republics of socialist Yugoslavia had differing histories of decriminalization of homosexuality, after the constitution of 1974 had introduced a separate Criminal Code for each republic . Homosexuality was decriminalized in the Criminal Codes of Slovenia, Croatia and Montenegro in 1977, but continued to be a criminal offense in Serbia until 1994, in Macedonia until 1997, and in Bosnia until 1998 . In Slovenia and Croatia, this action resulted from efforts by progressive lawyers and psychiatrists who were well-informed about the contemporary developments in western societies . Cf . Roman Kuhar, Trpeči aktivizem mi je bil vedno malo tuj: Intervju z dr . Bogdanom Lešnikom, Narobe 10, 20 June 2009, available at . 17 Cf . Bogdan Lešnik, Melting the Iron Curtain: The Beginnings of the LGBT Movement in Slovenia, in: Melinda Chateauvert (ed .), New Social Movements and Sexuality . Sofia 2006, 86-96 . 18 Cf . Metka Mencin Čeplak / Roman Kuhar, Boji za enakost: Od dekriminalizacije homoseksualnosti do redefinicije družine,Socialno delo 49 (2010), n . 5-6, 283-298 . Same-sex Partnership Policy Debates in Croatia and Slovenia 31 pride parade in Croatia .19 These actions produced extensive media coverage, similar to what the Slovenian movement had already achieved by the late 1990s . Hence, the level of human rights of sexual and gender minorities in Croatia in 2002 remained “as bleak as it had been for the last 26 years” . However, the gay pride parade and similar initiatives altered the discourse such that “for the first time, homosexuality became more than merely a cause for scandal, brief news in the entertainment section, or an opportunity for moralizing ranting of the homophobic society” 20. A crucial issue differentiating the two countries is the experience of war . Whereas Slovenia experienced a short 10-day-war for independence in 1991, Croatia was involved in a military conflict for nearly five years (1990-1995) . The war in Croatia reinforced nationalist and religious discourses . This legacy of nationalism, strong religious beliefs, militarism, and macho culture continue to frame Croatia’s heteronormative society 21. Although Slovenia is far from being a non-heteronormative society, it seems that, after the dissolution of socialist Yugoslavia, the revitalization of the Catholic Church and the blossoming of nationalist discourses never went as far in Slovenia as it did in Croatia 22. However, both processes also affected policy debates on same-sex unions in Slovenia .23 The positions of each country’s governing part also differentiates Slovenia and Croatia . In Croatia, the right-wing Croatian Democratic Party (Hrvatska Demokratska Zajednica, HDZ) was in power from 1991 to 2000 . It was led by Franjo Tuđman, the Croatian president at that time . After Tuđman’s death in 1999, a left-wing bloc consisting of six parties took over the government . During

19 Juras / Grđan, Croatia (above fn . 6), 87f . 20 Sanja Juras / Dorino Manzin, The State of Human Rights of Sexual and Gender Minorities in the Republic of Croatia in the Year 2002 . Zagreb 2002, 1, available at . 21 Gordan Bosanac, How We Changed The Laws – Campaigning for Equality, Gay Croatia Tourist Info, 19 June 2004, available at . 22 In Croatia, for example, the priest Anto Baković became vice president of the Croatian Democratic Union, the leading political party in the 1990s . He became (in)famous for his quests to save the nation by increasing the number of Croatian children . For example, in an interview for the Dubrovački list he said: “I fight against families with only two children, because mathematically one or two children in a family results in the dying out of the nation . In the history of mankind there was not a single nation which would die out because of hunger, illnesses, or war, but only because there were not enough children born .” Cf . Ana Prohaska, Don Anto Baković: Obitelji s dvoje djece su naša propast, Dubrovački list online, 2 November 2008, available at . 23 For more on the role of the Slovenian Catholic Church in these debates cf . Roman Kuhar, Pravična in nepravična diskriminacija: Odnos Rimskokatoliške cerkve do homoseksualnosti, Poročilo skupine za spremljanje nestrpnosti 3 (2004), 28-55 . 32 Roman Kuhar its rule, same-sex union legislation was adopted in 2003 . In November of that year, the elections brought the right-wing bloc back into power . In Slovenia, the political situation was just the opposite . Left-wing governments of the Liberal democrats of Slovenia (Liberalna Demokracija Slovenije, LDS) were in power from 1992 to 2004, interrupted only by one short period of right-wing government . It seems that, while in Croatia the long period of right-wing governments have prevented policy debates on same-sex unions from emerging, the left-wing governments in Slovenia have stimulated such debates, at least at a declarative level . In Slovenia, several attempts were made to oducepr a same-sex union bill . However, in their twelve years in power, the Slovenian left-wing governments never succeeded in mobilizing sufficient political will to adopt the proposed bills . It was in fact the right-wing government, led by the Slovenian Democratic Party (Slovenska Demokratska Stranka, SDS), which adopted the Registration of a Same-Sex Civil Partnership Act in 2005 . Interestingly enough, the initial bill on same-sex unions was proposed by a reformed ex-communist party in both countries – in Croatia by the Social Democratic Party (Socijaldemokratska partija Hrvatske, SDP) and in Slovenia by the United List of Social Democrats (Združena Lista Socialnih Demokratov, ZLSD) .

Policy Debates on Same-sex Partnerships

The beginning of the policy debates on same-sex partnerships in Slovenia can be traced back to 1989, when the Union of the Socialist Youth of Slovenia (Zveza socialistične mladine Slovenije, ZSMS)24 adopted the demands of the gay and lesbian movement into their political program, including the right for same-sex couples to get married .25 The first explicit initiative for the legal recognition of same-sex couples came in 1993, when a gay couple appealed to the Constitutional Court, claiming that several articles of the Marriage and Family Relationship Act were unconstitutional and discriminatory, as they did not allow two persons of the same sex to get married . However, the Ministry of Labor, Family and Social Affairs (hereafter Ministry of Family Affairs) declared the appeal groundless, and for that reason the Constitutional Court never dis- cussed it . In 1994, the Women’s Office in Slovenia also suggested that Article 3 of the Marriage and Family Relations Act, which defines marriage as a “legally defined union of a man and a woman”, should be changed in a way that two persons of the same sex could get married as well . The Ministry of Family Af- fairs rejected this proposal, claiming that same-sex partnership issues should

24 ZSMS was later transformed into the Liberal Democracy of Slovenia (Liberalna democracija Slovenije, LDS), the leading political party of the 1990s and early 2000s in Slovenia . 25 Mencin Čeplak / Kuhar, Boji za enakost (above fn . 18) . Same-sex Partnership Policy Debates in Croatia and Slovenia 33 be dealt with in a separate law, rather than in the context of the Marriage and Family Relations Act 26. Despite the fact that the first initiatives for changing the legislation in Slovenia had been unsuccessful, they were important for stimulating media coverage of the issue . After continuous public debates on “homosexual marriage” in the early 1990s, the intensification of the debates in the late 1990s, and following numerous initiatives by gay and lesbian organizations to set up a legal framework for same- sex partnership, the Ministry of Family Affairs in 1997 established an expert group for the preparation of a bill concerning registered same-sex partnerships . In 1998, the expert group drafted a bill that regulated the formal and material conditions for the registration of same-sex partnerships . The chairman of this expert group, a well-respected lawyer, insisted on retaining a legal interpretation of marriage reserved only for heterosexual men and women . He claimed that it was legally unacceptable to extend the right to marriage to same-sex couples, as the aim of marriage was “biological reproduction” . Consequently, the bill never even entered parliamentary procedure 27. A new expert group was established by the Ministry of Family Affairs in late 2001 . The State Secretary of the Ministry recommended that the bill should provide the same rights and obligations that are already guaranteed to heterosexual partners, but that it should not address the issues of adoption and the legal protection of same-sex families . She believed that the inclusion of these issues into the bill would result in the overall rejection of the bill by the Slove- nian Parliament . The expert group, consisting of experts and activists on gay and lesbian rights, agreed with this view . Thus, even though the legislation draft contradicted their own goals, they accepted them in order to gain at least some rights . This decision might be interpreted as a politically pragmatic one, yet in fact it amounted to consent to legalize discrimination . In this manner, the Ministry of Family Affairs proposed an unneeded compromise (i . e ., before it was prompted to do so, for example, by demands made by members of the Slovenian parliament) .28 An analogous situation occurred in Croatia, where gay and lesbian organizations not only refrained from proposing legislation on gay adoption issues, but also on several other rights – e . g ., social, healthcare, and pension rights – in order to avoid jeopardizing even the weakest possible legislation on same-sex unions . As a matter of fact, this corresponds to similar

26 Ibid . 27 Tatjana Greif, Zakonodaja na prepihu, Lesbo 5 (1998), available at: ; Metka Mencin Čeplak, Boj za zakonsko zvezo, 4000, Revija Liberalne Democracije Slovenije 12 (2001), 34f .; dies . / Kuhar, Boji za enakost (above fn . 18) . 28 Metka Mencin Čeplak, Magični krog diskriminacije, Družboslovne razprave 21 (2005), n . 49-50, 175-186 . 34 Roman Kuhar step-by-step approaches that have been adopted in most Western European countries, with differing lengths of such various stages in each context . The Slovenian bill on registered partnerships, which provided same-sex couples with all the rights and obligations granted to married heterosexual couples except for the right to adoption, was submitted to the governmental procedures at the end of 2003 . However, the Slovene People’s Party blocked the actual parliamentary consideration of the procedure, arguing that “the forma- tion of same-sex partnerships is not a human right . Human rights protect the values for which we strive . Same-sex partnerships are not among them .” The party maintained that although “society can tolerate same-sex partnerships, it cannot support them in the same manner as heterosexual ones . That would turn out to be a suicidal politics .”29 In the course of the political events, the People’s Party left the governing coalition on the basis of other political disagreements, and the ruling left-wing coalition reached an agreement on the proposed law in early March 2004 . However, the agreement was withheld from the parliament until its very last session before the new elections in October 2004 . With the subsequent change of government, the bill was rejected in its second and third reading . Instead, the new right-wing government, which did not collaborate with the gay and lesbian non-governmental organizations, drafted its own bill on registered same-sex partnerships . There were several reasons for this . As said, under the previous government, an extensive debate on same-sex partnerships and the bill on same-sex partnerships had been carried out with the latter’s first reading passing parliament . The new government seized the opportunity to issue a law which would make both a legal and a symbolic distinction between marital unions and same-sex partnerships, while at the same time acknowledging some rights to homosexuals, who would then be unable to claim that the government failed to address their concerns . In this manner, the SDS government achieved its goal, the “protection” of the institutions of marriage and family, while at the same time – especially in the context of Slovenia’s EU accession – appearing to be a progressive and tolerant center-right government .30 The bill of 2005 granted homosexual partners minimal rights . The government refused to consider amendments to the bill submitted by the opposition parties, as well as by gay and lesbian organizations . The Registration of a Same-Sex Civil Partnership Act, adopted on 22 June 2005, grants partners in a same-sex relationship a say in questions regarding each other’s medical care, as well as limited inheritance rights . No social, pension or elatedr rights are granted, while questions of adoption and social parenting are not addressed at all .

29 Quoted in Tomaž Trplan / Sabina Autor / Roman Kuhar, Udovnik: “Dobro” življenje, Poročilo skupine za spremljanje nestrpnosti 3 (2004), 8 . 30 Kuhar, Hoč’va ohcet (above fn . 7), 132 . Same-sex Partnership Policy Debates in Croatia and Slovenia 35

The LGBT organizations in Slovenia considered the law discriminatory . Some of them called on gay and lesbian couples not to consent to such legislation and to refrain from registering as partners . According to the latest data (May 2011), 41 same-sex couples (23 male and 18 female) have registered their partnership . In the same period, seven registered partnerships have dissolved (two of them due to the death of one of the partners) . In 2006, a registered gay couple appealed to the Constitutional Court, claiming the law, which established different inheritance rights for heterosexual and homosexual couples, to be unconstitutional . In 2009, the Constitutional Court ruled in favor of the complainants . On the basis of this decision, the Ministry of Family Affairs proposed a new Family Code in late 2009, which put heterosexual and homosexual partnerships on equal legal footing, including the right of same-sex couples to joint and second-parent adoption . In spring 2011, the bill was changed due to strong political opposition . The Ministry of Family Affairs introduced a distinction between a “marriage” (for heterosexual partners) and a “civil partnership” (for homosexual partners), with equal legal rights accorded to both institutions, except for the right to adoption; same-sex partners are not allowed joint adoption, but only second-parent adoption . However, the opposition parties continue to refuse to support the bill . At the time of this writing (May 2011), the bill was still entangled in parliamentary procedure . It is impossible to predict whether the strong resistance from the opposition parties and from civil initiatives backed by the Catholic Church will succeed in blocking the adoption of such legislation . In contrast to previous bills, which focused primarily on the binary opposition between heterosexuals and homosexuals, the new bill introduced the concept of social parenting . Thus, the government built a strong argument that legal recognition of biological parenting needs to be amended with the legal (and consequently social) recognition of social parenting, which has become common practice in contemporary family arrangements .31 Therefore, the legislation shifts the attention from the human rights of homosexuals alone to include the human rights (and ethics of care) of children living in same-sex families . The timespan of the analogous Croatian policy debate is shorter . The “com- ing out” of the Croatian gay and lesbian movement in 2002 coincided with the government announcement that it would reform the Croatian Family Act . The NGOs saw an opportunity to put forward their concerns . In May 2003, they publicly presented their suggestion for the amendment of the Family Act; they wished to alter the definition of marriage to include same-sex partners . To their own amazement the media reported widely on their requests . The first gay pride parade in Croatia exerted additional political pressure and was or-

31 Cf . Darja Zaviršek, Med krvjo in skrbjo: Socialno starševstvo kot širitev koncepta starševstva v današnjem svetu, Socialno delo 48 (2009), n . 1-3, 3-16 . 36 Roman Kuhar ganized about a month after the public request of amendments . The gay pride parade, too, received much media attention .32 In Slovenia, the 2004 and 2005 gay pride parades also used slogans related to same-sex union .33 Furthermore, the Croatian Minister of labor and social affairs, Davorko Vidović, invited representatives of NGOs to a meeting to discuss the proposed amendment . This ensured a close cooperation with the NGOs Iskorak and Kontra, result- ing in the Ministry’s proposal of a bill on family, marriage, and common-law marriage . Although the bill was adopted after its first reading in the Croatian parliament, oppositional political actors insisted that same-sex partnership issues be addressed in a separate law . As in Slovenia, addressing these issues in the context of family and marital unions was regarded as problematic, and primarily on the symbolic level . The Ministry and the gay and lesbian organizations compromised on prepar- ing a separate bill . As in Slovenia, the Croatian GBTL organizations consented to political pragmatism in order to gain at least some rights . Juras and Grđan com- mented that “the political climate in Croatia” was such that “for the time being such an Act did provide partners in a same-sex union with a number of rights”, and that it was “the first step in enhancing the position of the same-sex couples in Croatian society” 34. Unlike in Slovenia, the pragmatism paid off: The Same-sex Civil Union Act was adopted on 14 July 2003, against strong opposition from fundamentalist catholic groups, conservative political parties, and the Catholic Church itself . The Act addresses only two rights and obligations . One is the obligation of same-sex partners to mutual support if one of the partners is not capable of his/her own maintenance for up to one year (in exceptional cases for more than one year) after the dissolution of the partnership . Interestingly enough, the law refers to the Family Act, saying that provisions for maintenance from the Family Act should be applied accordingly . Secondly, the law regulates the division of common property between the partners after the dissolution of their partnership .

32 The march gained additional political weight as the Minister of the Interior and five other MPs participated to support the cause . After the parade, 27 individuals were injured in several skinhead attacks, which, according to Bosanac, resulted in “a lot of public sympathies” for the gay and lesbian community . Bosanac, How We Changed the Laws (above fn . 21) . 33 The 2004 slogan “There will be marriage!” expressed the movement’s eagerness with regard to the soon-to-be-adopted 2003 bill on registered partnerships . The bill – which at the time was already navigating parliamentary procedures – was also supported by two representatives of the ruling political parties: the State Secretary of the Ministry of Labour, Family and Social Affairs, Alenka Kovšča (ZLSD), and the MP Majda Širca (LDS) . After the failure to adopt this bill, marchers at the 2005 pride parade expressed their general dissatisfaction, claiming that “registration is discrimination” . 34 Sanja Juras / Kristijan Grđan, 2005 Annual Report on the Status of Human Rights of Sexual and Gender Minorities in Croatia . Zagreb 2005, 4, available at . Same-sex Partnership Policy Debates in Croatia and Slovenia 37

The Same-sex Civil Union Act references Article 14 of the Croatian Constitu- tion as its legal background . This article, which is exactly the same as Article 14 of the Slovenian Constitution, declares the equality of all citizens before the law, regardless of their “personal circumstances” . Additionally, the Act referred to several European countries where such legislation had been adopted earlier . However, although the supporters of the Act demanded tolerance and heightened sensitivity in Croatian society for people of different sexual orienta- tions, they did not address the fact that it includes only limited rights, omitting social, healthcare, and pension rights, as well as tax benefits and similar rights . Although it can be argued that the law is largely declarative, yet important in symbolic terms, it is also true that it reinforces the symbolic (and legal) privileges of marital unions . The fact that the Same-sex Civil Union Act includes an anti-discrimination section that prohibits direct and indirect discrimination of same-sex partners and discrimination on the basis of sexual orientation is ironic, given that it commits the same discrimination itself . Furthermore, the legal practice in the years that followed has shown that same-sex partnerships have often not been recognized in other juridical contexts concerning relations between married partners and partners in extra-marital unions . LGBT organizations interpreted the Same-sex Civil Union Act of 2003 as a first step only, designed to bring the issue of discrimination against sexual minorities into the public debate . In 2005, Iskorak and Kontra prepared an updated version of the Same-sex Civil Union Act, but again compromised a priori on a crucial point: the proposed act echoed the government’s logic of differentiation between marriage and registered partnerships , while demanding equal treatment of heterosexual and homosexual partners with regard to social, health insurance, pension, security and inheritance rights, as well as tax benefits . In addition to not demanding the right of homosexual partners to marry, the proposal, again, did not address adoption rights . The 2005 Croatian bill was therefore similar to the Slovenian one of 2003: equal rights, except for adoption; no discussion of same-sex families; and a separate institution – registered partnership, rather than marriage – for same-sex partners . In September 2005, the bill entered the Croatian parliamentary debate . Although the Committee for Gender Equality supported the bill, the Committee for Human Rights and National Minorities, which consisted primarily of members of the ruling HDZ (Hrvatska demokratska zajednica, Croatian Democratic Union), rejected it . One of its members, Niko Rebić, stated at a Committee meeting that “the main message from the Bible on the subject of homosexuality is that it is Sodom and Gomorrah” and that “AIDS is one of the characteristics of what happens in same-sex partnerships” 35. In March 2006, the Croatian parliament rejected the proposal .

35 Quoted in Juras / Grđan, Croatia (above fn . 6), 92 . 38 Roman Kuhar Framing Same-Sex Partnership Debates

The discursive frames of the parliamentary debates on same-sex registered partnerships in Slovenia and Croatia are largely similar to comparable debates in other European countries 36. The adoption of such legislation was often interpreted as a threat to the family and the nation . For such reasons the Slovenian Registration of a Same-Sex Civil Partnership Act introduced a limited amount of rights . In Croatia, where, unlike in Slovenia, the Same-sex Partnership Act was prepared by a left-wing government, these alleged threats did not play an important role, but they were strongly expressed by the opposition, leading to a failure of implementation . In legal terms, the Slovenian Registration of a Same- Sex Civil Partnership Act does not recognize registered partners as next-of-kin, while the majority of social, pension and related rights are connected with that very status . Similarly, the Croatian Same-sex Civil Union Act does not regulate social, health, pension, or similar rights . When applying the Critical Frame Analysis, five different frames can be identified in the parliamentary debate on same-sex artnershipsp in Slovenia and Croatia . The human rights/equality frame is typically used by the proponents of the bill, often accompanied by the Europeanization frame . The perception of such legislation as a threat to the family and nation is reflected in the frame of nature and the nationalist frame, while the exercise of the powers of the majority over minorities is reflected in the public opinion frame .

The Frame of Nature

The initial statement of the Slovenian right-wing government with regard to the Registration of a Same-Sex Civil Partnership Act was that same-sex unions represent “a unique union of two adults” .37 The distinctiveness of this union refers to the gender of both partners; as a same-sex partnership is constituted by two persons of the same sex, their union cannot be compared to a heterosexual partnership . Here, gender – rather than sexual orientation – seems to represent the primary ground for the differential treatment of both unions, although both personal circumstances – gender and sexual orientation – are intertwined to a large extent . Such a mental approach to the bill allowed opponents to argue

36 Cf . Roman Kuhar, In the Background of Non-discrimination Discourse: From the Rights of Same-sex Partners to the Rights of Children, Paper Presented at the Quing Final Confer- ence, Central European University, Budapest (2-3 October 2009), available at . 37 Republika Slovenija, Ministrstvo za delo, družino in socialne zadeve, Predlog zakona o registraciji istospolne partnerske skupnosti (2005), 2 . The law is available at . Same-sex Partnership Policy Debates in Croatia and Slovenia 39 that the uniqueness of same-sex unions justified the reduced amount of rights that should be granted to partners in such a union . The explanatory note to the Croatian Same-sex Civil Union Act does not reflect such a mental disposition . On the contrary, it claims that “homosexual persons, just like heterosexual persons, form life unions, which are based on emotional relations between partners and on their sexual needs” .38 The bill’s advocates acknowledged the presently existing inequality and expressed the wish to up- date the Croatian legislation in accordance with the “high standards of human rights and equality of citizens” 39. Although the Croatian legislature refrained from morally “evaluating” both kinds of unions, the result was still similar in both countries: inferior rights and obligations for members of same-sex unions . Although in Slovenia the major reason for differentiating between homosexual and heterosexual unions was never explicitly stated in official governmental notes, a parliamentary debate illustrates that it was the issue of reproduction that fed the “frame of nature” . While of course the issue of reproduction is no precondition for heterosexual partners to be allowed to get married, the alleged “un-reproductiveness” of same-sex couples served as the ground for their dis- qualification . In the debate, arguments like the one by Franc Capuder, MP of the conservative New Slovenia Party (Nova Slovenija, NSi), were put forward: “Homosexual unions are specific life unions with specific needs . These needs cannot be equated with the needs of marital unions . […] We do not deny homosexual unions the rights they are entitled to, but we cannot equate heterosexual and homosexual unions . […] The law cannot equate something that cannot be equated . […] Due to the physical survival of the society – the state is obliged to follow this goal – the state has to stand for granting legal privileges […] to the family . That should be the primary project of our own future . The homosexual unions do not and cannot by far fulfill these tasks . For this reason the marital union of a man and a woman and the family deserve special societal acknowl- edgement and care . Should the unions of two persons of the opposite sex be just one of the possible marital unions that would fundamentally change the meaning of the marital union and would bring a lot of damage for the common welfare of the society .”40 Unlike the current debate on the Family Code in Slovenia, which focuses on social parenting, i . e ., on the care for children rather than on the biological potential of reproduction (although such discourse is not totally absent), the

38 Republika Hrvatska, Ministarstvo rada i socijalne skrbi, Prijedlog zakona o istospolnim zajednicama, s konačnim prijedlogom zakona (2003), 2, available at . 39 Ibid . 40 Excerpt from the parliamentary debate on the Bill on Registered Same-sex Partnership, 7th Plenary Session of the Parliament of the Republic of Slovenia, 17 June 2005, available at . 40 Roman Kuhar debate in 2005 focused on the specificities of same-sex partnerships, which were measured through the framework of the gender of the partners and their reproductive capacities . Heterosexual partners can reproduce – at least most of them – therefore, so the argument runs, any state interested in perpetuating its own existence should grant privileges accordingly . A similar line of argumentation was employed in the Croatian parliamentary debate on the Same-sex Civil Union Act . Here, rather than being used to justify limiting the amount of rights, it was used to reject the bill as a whole . Ljubo Česić-Rojs, a HDZ MP, claimed that “we would not be born, had our ancestors adopted such laws . Children cannot be conceived by the Holy Spirit . […] Anywhere in the world a man can not make a baby to another man . That’s incomprehensible . I have to admit […] that I am disgusted by all this .”41 Unlike in the Slovenian parliamentary debate, in Croatia, the issue of reproduction was not only interpreted through the demographic/nationalist framework, but also in the context of “divine laws” and Croatian Catholic culture . Dr . Jure Radić from the HDZ simply explained that his party could not support the bill, as it was “in contradiction to the principles of Christian civilization” 42. Similarly, Dr . Anto Kovačević from the Croatian Christian Democratic Union (Hrvatska kršćanska demokratska unija, HKDU) claimed: “Nature has created us as men and women with reproduction capabilities . [It has created us] – at least in our Croatian demo-catholic culture – with an obligation to get married, to reproduce and to respect a human being from his/her concep- tion to death, to love every person regardless of what he is . [It has created us] with divine fear of sin . […] Queerness is a sin . […] A government which adopts laws against human nature and divine laws cannot last for a long time .”43 Also in Slovenia, the argument regarding the “non-reproductiveness” of same- sex partnerships turned out to be highly ideological . I will leave aside the fact that, according to conservative estimates, about 100 children currently live with same-sex parents in Slovenia . I will also leave aside the fact that the legislators in both countries, while using the argument of the “non-reproductiveness” of same-sex unions, have not legalized several of the existing options through which same-sex unions could “reproduce” . Clearly, the Croatian and Slove- nian legislators affirmed and strengthened heteronormative ideology and, by exclusion of issues related to same-sex families, insisted on the family as a heterosexual institution .

41 Excerpt from the parliamentary debate on the Bill of Same-sex Unions, Plenary Session of the Parliament of the Republic of Croatia, 9 July 2003 . 42 Ibid . 43 Ibid . Same-sex Partnership Policy Debates in Croatia and Slovenia 41

Going beyond the issue of heteronormativity, the reproductive argument generally implies the preferability of biological reproduction to other forms of parenting – such as adoption, fostering, social parenting etc 44. In other words: It seems that, to paraphrase John F . Kennedy, the question is not what the state can do for homosexuals, but rather what homosexuals can do (or cannot do) for the state . The latter was explicitly stated during the Croatian parliamentary debate by Dr . Zdravka Bušić from the Croatian Bloc (Hrvatski blok, HB): “The reflection of what is an ordinary Croat can besynthesized in the question what these kinds of union bring to society and what society owes them .”45 She answered the question herself by stating that “tolerance is the most these kind of unions can ask from the society” 46.

The Public Opinion Frame

The use of the “non-reproductiveness” of same-sex partnerships as a justification for their discriminatory treatment became more visibly ideological in the Slovenian parliamentary debate during the second and third readings of the 2005 bill . For example, Stanislav Brenčič, an MP from the Slovenian People’s Party, argued for the limitation of rights to be granted to same-sex unions on the basis of the prevailing public opinion: “In the Slovenian People’s Party, we are convinced that the solutions the bill suggests for the life union of two persons of the same sex corresponds to the amount of rights that is acceptable for society .”47 In fact, when the Slovenian Registration of a Same-Sex Civil Partnership Act was adopted in 2005, one of the key arguments was the result of a public opinion poll . The Slovenian government never revealed who conducted this research, nor the sample size of the survey, which is telling in itself .48 However, what is much more significant is another concern: Public opinion can be, and often is, xenophobic, homophobic, sexist, etc .; using it to determine the recognition (or non-recognition) of the human rights of minorities and other groups of society is clearly an abuse . It means that human rights – or the quest for them – no longer represents a democratic tool for the protection of these groups . In the Slovenian case, the results of this particular poll – which showed 51 % of the respondents

44 Cf . Zaviršek, Med krvjo in skrbjo (above fn . 31) . See also: Ana M . Sobočan, Istospolne družine v Sloveniji, Socialno delo 48 (2009), n . 1-3, 65-86 . 45 Excerpt from the parliamentary debate, Croatia (above fn . 41) . 46 Ibid . 47 Excerpt from the parliamentary debate, Slovenia (above fn . 40) . 48 The research was first presented by a representative of the Ministry of Labour, Family and Social Affairs in an interview for Radio Slovenia in March 2005 . Cf . Kuhar, Hoč’va ohcet (above fn . 6), 116 . 42 Roman Kuhar supporting the legal recognition of same-sex partnerships, but not their legal equation with marital unions – were used to legitimize a discriminatory policy . In Croatia no public opinion poll on registered same-sex partnerships was conducted . Croatian MPs did however guess at what the general public might think of the proposed bill, and presented their estimates as hard facts . Dr . Anto Kovačević (HKDU), for example, claimed that the proposed bill meant “trampling underfoot the majority interests of Croatian society . If you asked the public about this law, which is dangerous for the future of the nation and for the development of a humane and healthy mankind, or if a public referendum was organized, then 98 % of the citizens would be against the adoption of such legislation .”49 Some Croatian MPs even used pseudo-scientific discourse in order to support their views . The debate centered around the actual number of homosexuals in Croatia, in order to know how many people would be affected by the legislation . Whereas those Croatian MPs who were in favor of the bill, like Mladen Godek from the Party of Liberal Democrats (Stranka liberalnih demokrata, Libra), stressed that the homosexual minority is not as small as one might think, those opposed tried to prove the contrary . However, both sides used the same problematic basis of argumentation, namely the number of homosexuals in society as a justification to approve or dispose of the legitimization and protection of their human rights . Dr . Zdravka Bušić (Croatian Bloc) claimed that the general public would definitely refuse such legislation, as there were only a few homosexuals in Croatia: “World statistics on the number of homosexuals and their unions cannot be comparable to Croatian society, due to its historical and cultural specificity . The actual number in Croatian statistics is so negligible that it can be said that there are only a few [homosexuals] . They cannot by any means be a sufficient argument for the adoption of a ‘private’ law and for equating the status of heterosexual extra-marital unions with homosexual extra-marital unions .”50 The debate over the homosexual population emerged in the Slovenian debate as well, but it did not lead to apocalyptic scenarios such as the one presented by HDZ’s Ljubo Česić-Rojs: “Some say that there are 5 % [of homosexuals in Croatia], some say there are 10 % . If there are 10 % […], these 10 % cannot deceive the remaining 90 % and adopt a law which addresses only them . And these 10 % will poison the next 10, 20, 30 % . In the next 50 years we will have over 50 % . […] I repeat one more time: If these 10 % adopt children, they will bring them up and there will be 20 % [of homosexuals] in the next generation .”51

49 Excerpt from the parliamentary debate, Croatia (above fn . 41) . 50 Ibid . 51 Ibid . Same-sex Partnership Policy Debates in Croatia and Slovenia 43

Dr . Anto Kovačević (HKDU) expressed a similar sentiment when he argued that, if the law were passed, Croatia would soon have gay quarters similar to those in San Francisco . With the introduction of the numeric sub-frame in the debate, the proponents of the bill reacted within the same context . Mladen Gorek (Libra) opposed Rojs’ mathematical formula by stating that “the law does not make children” 52. Here another hidden level of argumentation needs to be defined . While the supporters of the Croatian bill strategically framed the numeric issue to argue that the number of homosexuals would not rise due to the adoption of the bill, the actual number of homosexuals became problematized . Both the supporters and the opponents of the bill accepted the underlying idea that an increase in the number of homosexuals would be undesirable . In this way, both groups fostered a discourse on the unacceptability of homosexuality .

The Human Rights / Equality Frame

The human rights and equality frames that include references to anti-discrimination and tolerance are typically used by the supporters of bills on gay marriages or registered same-sex partnerships . In thecontext of the intimate/sexual citizenship debate, the right to publicly recognized partnership is considered as a citizen’s right, regardless of sexual orientation 53. Whereas in Croatia it was in fact primarily the supporters of the bill who used this frame, in Slovenia also its opponents referred to it . On the one hand several Croatian and Slovenian MPs employed this frame to show that homosexual rights are in fact not identical with human rights . Such framing was typically accompanied by the nationalist frame . For example, Croatian MP Dr . Anto Kovačević (HKDU) remarked: “We are not talking here about human rights . This bill is a project of destruction of the foundations of the Croatian family and the Croatian state . It is an operation against the values of the Patriotic war and the values of the Christian family .”54 On the other hand, the human rights of gays and lesbians were defended referring to the contribution of homosexuals to the history of mankind . Mladen Godek (Libra) rhetorically asked: “Why do we not recognize that homosexuality existed throughout the history of civilization? Why do we not recognize the fact that all of us know about – which is that there were numerous or better countless great people and women [sic!] who were homosexuals and who contributed to mankind much more than – ex- cuse me for being blunt – all of us who are sittingin this parliament ever will .”55

52 Ibid . 53 Ken Plummer, Intimate Citizenship: Private Decisions and Public Dialogues . London 2003; Diane Richardson, Rethinking Sexuality . London 2000 . 54 Excerpt from the parliamentary debate, Croatia (above fn . 41) . 55 Ibid . 44 Roman Kuhar

And thirdly, others used the human rights / equality frame in order to point out that the recognition of the bill on same-sex partnerships is not a legal mea- sure of anti-discriminatory policies . The Croatian MP Ljubica Lalić (Croatian Peasant’s Party / Hrvatska seljačka stranka, HSS) maintained that the energy put into the preparation of the bill would be better spent on the prevention of discrimination .56

The Europeanization Frame

In the framework of the EU’s commitment to social inclusion, Article 9 of the EU Charter of the Fundamental Rights (which stipulates that the right to marry and found a family is a matter to be regulated in accordance with the national laws) seems to be somewhat relativized . However, the EU has in fact not is- sued any legally binding document that would impose on the member states the legal recognition of same-sex unions . Referring to this state of things, some Slovenian MPs stressed that EU membership did not oblige Slovenia in any way to adopt such legislation . In Croatia, on the other hand, Croatian MPs referred to the EU either as something to follow if Croatia wanted to be recognized as a country where human rights are respected, or as something to be rejected if Croatia wanted to preserve its own (Catholic) culture . In both cases, the EU’s impact is somewhat ambiguous . Certainly, EU anti- discriminatory measures (for example article 13 of the Amsterdam treaty, which enables EU to take appropriate action to combat discrimination) and its recommendations regarding same-sex partnerships57 have served as a good founda- tion for both the local Slovenian and Croatian LGBT NGOs and the Ministries that sketched the respective bills on the legal recognition of same-sex unions . However, the fact that the EU does not provide any mandatory framework for family policies has allowed the conservative Slovenian government to argue that the very fact that it adopted the Registration of Same-sex Civil Partnership Act was a sign of its tolerance and progressiveness . As Cveta Zalokar Oražem (LDS) pointed out, this attitude disregarded the fact that the Act meant a mere compromise for those addressed by it: “I don’t know why we are adopting it . Maybe because of those who would like to clear their conscience, or maybe they want to show Europe that something has been done in Slovenia .”58

56 Ibid . 57 For a comprehensive list of EU recommendations and resolutions cf . ILGA Europe, What the European Parliament has done for LGBT rights?, available at . 58 Excerpt from the parliamentary debate, Slovenia (above fn . 40) . Same-sex Partnership Policy Debates in Croatia and Slovenia 45

Hence, the Europeanization frame can be used either to justify the adoption of a bill on same-sex partnerships, or to oppose it, and such ambiguity reflects the general habit of new or not-yet EU member states to flexibly adapt or reject the EU’s dispositions . If useful, EU decisions tend to be interpreted as good and progressive by definition; otherwise, the same framework faces criticism and the nation-state rhetoric takes over . In the context analyzed here, the statement of the Slovenian MP Eva Irgl (SDS) is illustrative: “We cannot uncritically accept all models and patterns from the Netherlands […] . In the Netherlands, the negative trends of too much liberality and of decisions that were made too quickly are already obvious . You also forget that big European countries, such as Greece, Italy, Austria and also Luxemburg [sic!] have not regulated this issue yet .”59 The exact same argument was put forward by the Croatian MP Dr . Zdravka Bušić (Croatian Bloc): “Is the existence of homosexual marriages in the Netherlands a good enough reason for the introduction of same-sex unions into the Croatian legislature? Foreign examples are not a priori the best examples to follow . The legislature of this country – regardless of the issue – has to respect arguments which derive from historical culture, mentality and customs of the nation . […] According to the census of 2001, in Croatia 86 % of citizens declared as Catholics who spiritu- ally recur to the Bible and the teaching of the Catholic Church .”60 Bušić concluded that Croatia should not blindly follow all “disintegrating and decadent examples from the developed countries” 61. It is ironic that she called those countries in which she detected “disintegrating and decadent” trends “developed”, implying that Croatia is not . In the Slovenian debate, Sweden and Norway served as examples of such trends . Alojz Sok, an MP from the New Slovenia party, quoted research by a Swedish sociologist – neither his/her name nor the title of the research work were ever mentioned – that showed that the majority of children in Norway and Sweden are born out of wedlock . Sok attributed this to the legal recognition of same-sex unions in these countries: “It is not a coincidence that these two countries have granted equal rights to same-sex partners for over ten years . Same-sex marriages helped strengthen the Scandinavian model of the disintegration of marital union and parenthood .”62

59 Ibid . 60 Excerpt from the parliamentary debate, Croatia (above fn . 41) . 61 Ibid . 62 Excerpt from the parliamentary debate, Slovenia (above fn . 40) . 46 Roman Kuhar

The Nationalist Frame

Connected to the EU dimension is the incorporation of nationalist discourse into the policy debate, complementing the above-mentioned heteronormative discourse on the “naturalness” of heterosexual relationships and families . In Slovenia, the nationalist discourse included ideas of “cleansing” the Slovenian nation of “un-reproductive” gays and lesbians . For example, Boštjan Zagorac, an MP from the right-wing Slovenian National Party (Slovenska Nacionalna Stranka, SNS), expressed his fear that homosexuals from Croatia, Italy and other countries where same-sex unions are not legally recognized could be imported to Slovenia . Another MP from the same party (Bogdan Barovič) suggested that gays and lesbians should rather go abroad to get registered: “There are countries where same-sex marriages are possible . Let these gentlemen go to Sweden or let these ladies go to Norway or Denmark, just like Slovenian workers work in Austria, Italy and Sweden if they cannot find a job at home .”63 In Croatia, the nationalist discourse also included the idea of “cleansing” the nation as a solution, but there was no expression of fear of foreign gays and lesbians moving to Croatia . Instead it was framed as a cultural issue, where Christian values, embedded in the Croatian culture, were understood to be in direct opposition to the proposed bill: “The effects of this law”, said Dr . Anto Kovačević (HKDU), “are fatal for the healthy national tissue of Croatia . […] . In our HSP HKDU club we cannot understand that the state that has 89 % Catholics whose healthy life was implanted into them by mother’s milk and baptism, for whom love is the basis and the content of life, for whom family is a shrine, the Croatian home is a shrine, a place of peace and happiness [ . . .] We cannot allow that those who don’t like Croatia and don’t respect its traditional values continue to terrorize us with the new-world gay projects .”64 Likewise, Ljubo Česić-Rojs (HDZ) claimed that this bill showed that “somebody’s goal is to wipe away the Croatian nation from the planet Earth” .65 Furthermore, the priority of policy actions for the Croatian nation was raised . Some MPs claimed that there were much more pressing issues to be dealt with than “wasting time” on something like same-sex unions . Dr . Anto Kovačević (HKDU) claimed: “While we are discussing the bill on registered same-sex partnerships […] workers’ unions are fighting for basic human rights, the right to work, the right to

63 Ibid . 64 Excerpt from the parliamentary debate, Croatia (above fn . 41) . 65 Ibid . Same-sex Partnership Policy Debates in Croatia and Slovenia 47

human dignity . Today in Croatia there are much more important issues which worry ordinary Croatian men .”66 The same MP wondered why homosexuals were so successful in putting pressure on the government to adopt such legislation, whereas other groups of people – for example those who fought for Croatia during the Homeland war – have gone unheard in asking for their rights . Whereas in the Slovenian discussion, one nationalist solution for the “problem” suggested that gays and lesbians should move to countries where the registration of same-sex partnership was legal, in the Croatian debates, the “rem- edy” was envisioned within Croatia . Dr . Anto Kovačević (HKDU) conceived of a hospital built on the island of Goli otok67: “Let these unfortunate people go there, let them swim, and let them be helped and cured .”68 Ljubo Čošić-Rojs (HDZ) even more explicitly referred to the alleged sickness of homosexuals: “They are not healthy; they have gone mad, and they are driven by insanity in those moments . They do not know anything anymore; they have no limits; they get lost . […] That is normal – when the devil enters somebody, he does not know anymore what he is doing . Such people need help, they need to be cured of such things .”69

Conclusion

The Critical Frame Analyses of the parliamentary debates on same-sex unions in the parliaments of Slovenia and Croatia show no major differences in how the policy debates were framed (see table 1) . One of the differences was created by the fact that, in Slovenia, the bill was proposed by a right-wing government, and in Croatia by a left-wing government . This is reflected primarily in the differing deployment of the human rights frame . Another important difference, not related to the political inclination of the proposer of the bill, is in the usage of the religious-based discourse in the parliamentary debates . Whereas such discourse was almost totally absent in the context of the Slovenian parliamentary debates and only occasionally put forth in the public debate, it emerged strongly during the Croatian debate . Here, gays and lesbians were depicted in opposition to Catholic believers, overlooking the very fact that Catholics might also be gay or lesbian . On the other hand, worries about demographic development emerged almost exclusively in Slovenia, which must be assessed within a broader context of existing xenophobia in Slovenia .

66 Ibid . 67 In Tito‘s Yugoslavia, Goli otok, a Croatian island of scarcely two square kilometers, was transformed into a prison for political opponents . 68 Excerpt from the parliamentary debate, Croatia (above fn . 41) . 69 Ibid . 48 Roman Kuhar

Table 1 . Frames and sub-frames in the Slovenian and Croatian parliamentary debate on same-sex unions . Slovenia Croatia Human rights/Equality frame Historical sub-frame Absent The frame of nature Reproduction sub-frame Religious sub-frame Absent Demographic sub-frame Absent Public opinion frame Numeric sub-frame Absent Europeanization frame Nationalistic frame Final solution sub-frame

The queer critique of same-sex marriages has been absent from the policy debates in Slovenia and Croatia 70. There have been no publicly visible and recognized actors who would oppose same-sex partnership legislation because of its potential for further social exclusion of queer people . The LGBT organizations did point out the discriminatory character of the bills, but they did not question the implicit heteronormativity of the proposed legislation . Recognizing the queer critique, but putting it aside, it seems that one of the great potentials of the access of gays and lesbians to the institution of marriage is the establishment of a new, more egalitarian partnership, free from the bur- dens of gender roles . Hunter offers an interesting insight into the potential for such change through a comparison of homosexual and interracial marriages, which were similarly forbidden and frowned upon for a long time . Race, writes Hunter, is a biological characteristic or a fact of nature, which exists also as a social category into which different meanings and distributions of social power are inscribed, analogous to what the English language aptly defines as (biological) sex on the one hand and (social) gender on the other . The legal recognition of interracial marriage did not change the biological characteristics of race, but rather its social aspects . Similarly, today’s concept of marital union is still based on the biological category of sex . But marriage istraditionally also heavily based on social categories – the two genders and their social roles . Hunter points out that same-sex marriages would not directly change the heterosexual distribu- tion of power within marriage, but that they would represent a “disruption” of

70 Queer activists believe that gay marriage could be a platform for possible new exclu- sions (the “respectful gays vs . dirty queers” dilemma) . For more on this subject see: Michael Warner, The Trouble With Normal: Sex, Politics and the Ethics of Queer Life . New York 1999 . Same-sex Partnership Policy Debates in Croatia and Slovenia 49 the gender-based definition of marriage . In other words, same-sex marriages would de-gender the social categories of “husband” and ”wife” 71. The fact remains that in today’s Europe legal recognition of homosexual marriage is the exception rather than the rule . In the light of Hunter’s solidly convincing interpretation, “special” laws on same-sex unions – which are also “special” because they do not grant homosexual couples all the rights and obligations that heterosexual couples enjoy – actually retain and even strengthen the idea of marital union as a gendered institution, including numerous structural power dependencies . Slovenia and Croatia are no exceptions to this rule .

71 Nan Hunter, Marriage, Law and Gender: A Feminist Inquiry, Law and Sexuality 1 (1991), n . 1, 9-30 .