Under Article 38 of the Constitution of the Republic of Lithuania, the family is the basis of society and the State, and family, motherhood, fatherhood, and childhood shall be under the protection and care of the State. Even though the Constitution provides that families are the basis of society and what the concept of marriage is, there are still disagreements between legal scholars, lawyers, and politicians as to what ‘family’ actually means. The state’s obligation to protect families under the Constitution entails not only providing a regulatory framework for creating a family, but also the ability of the family members to make their own decisions in deciding what is best for them and their families.
What Is a Family under Lithuanian Laws According to the Parliament?
Article 38 of the Constitution of the Republic of Lithuania (the Constitution)[1] states the following:
“The family shall be the basis of society and the State.
Family, motherhood, fatherhood, and childhood shall be under the protection and care of the State.
Marriage shall be concluded upon the free mutual consent of man and woman.
<…>
In the family, the rights of spouses shall be equal.“
During the years since its adoption, there have been various attempts in Lithuania to redefine what a family is considered to be under the Constitution, mainly trying to work out the relation between marriage and the Constitutional concept of family. The following chapters analyze the concept of the family under the Constitution and its development in the last few decades.
Download full article: 09-KAROLINA MICKUTĖ THE CONSTITUTIONAL COURT IN LITHUANIA TALKS THE TALK
What Did the ‘Constitution’s Fathers’ Have in Mind and Is It Relevant?
Member of the Parliament of the Republic of Lithuania (the parliament), lawyer, and previous judge of the Constitutional Court of Lithuania Dr Stasys Sedbaras notes that during the drafting of the Constitution “[t]he Fathers of the Constitution had no doubt that the family is the union of a man and a woman, created by marriage”[2]. However, the Constitutional doctrine notes that albeit the Constitution is in a written form, it, as a legal reality, cannot be treated merely as its textual form and it is not a mere set of explicit provisions[3].
According to the official interpretation provided by the Constitutional Court, the Constitution cannot be interpreted in a literal, linguistic (verbal) way alone – it requires the application of various methods of legal interpretation. Only by analyzing it in a comprehensive manner can the purpose of this social contract and supreme legal authority be realized, ensuring that the meaning of it is not departed from, that the spirit of the Constitution is not undermined, and that the values on which the Nation has based its own fundamental act are enshrined in life[4]. In the discussed case basing the Constitutional family concept only on the notions of the Constitution’s Fathers, as Dr Sedbaras is doing, is not in line with the means of interpreting the Constitution and its spirit.
[1] The Parliament of the Republic of Lithuania (1992) The Constitution of the Republic of Lithuania Adopted by the citizens of the Republic of Lithuania in the Referendum of 25 October 1992. Available [online]: https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/079fcad0cf8711ecb69ea7b9ba9d787b?jfwid=-jeli79w55
[2] Sedbaras, S. (2014) What the Family Is and Isn’t in the Constitution and the Arguments. Available [online]: https://www.delfi.lt/news/ringas/politics/s-sedbaras-kas-yra-ir-kas-nera-seima-konstitucijoje-ir-argumentuose.d?id=65092419 [in Lithuanian]
[3] The Constitutional Court of the Republic of Lithuania (2004) Ruling on the State Family Policy Concept, the May 25. Available [online]: https://lrkt.lt/en/court-acts/search/170/ta1112/content
[4] Ibid.
DOWNLOAD FULL ISSUE (PDF):
