On 18 December 2024, the Lithuanian Constitutional Court held that the law, prohibiting the dissemination of public information depicting same-sex relationships is unconstitutional as it violates the freedom of thought of children and the right to found a family under the Constitution of Lithuania. The decision follows the rationale of the European Court of Human Rights (ECtHR) recent decision in the case of Macatė v Lithuania (2023), wherein the ECtHR found that the prohibition on the publication of children’s books featuring stories about same-sex romantic relationships under the said Lithuanian law, violates Article 10 of the European Convention. In this contribution, I examine the Constitutional Court rationale of the decision and contend that the LCC’s approach embodies a progressive interpretation of constitutional values by recognizing family as a gender-neutral concept and childhood as a protected constitutional value. I conclude that while the judgment is progressive, it falls short in addressing the discrimination against the LGBTQ community.
The Impugned Law
On 10 September 2002, the Lithuanian Parliament adopted the Law on the Protection of Minors from the Negative Influence of Public Information (Impugned Law), which was later amended significantly in 2009. The law established criteria for public information considered harmful to minors’ mental, physical, intellectual, spiritual, or moral development. Notably, Article 4(2)(16) of the law classified information that “creates a contempt for family values and promotes a concept of marriage and family formation different from that established in the Constitution and Civil Code” as having a negative impact on minors. In practice, this provision was interpreted to restrict information about any family models other than those based on marriage between a man and a woman, effectively limiting the dissemination of information about same-sex relationships to minors. In February 2023, following the ECtHR judgment in Macate, the Lithuanian Ministry of Justice initiated efforts to amend the law. However, when the proposed amendments were presented to the Lithuanian Parliament, they were rejected. In response to this legislative impasse, the Ministry of Justice petitioned the Constitutional Court to review the law’s constitutionality, specifically seeking clarity on how the provisions defining ‘public information detrimental to minors’ align with the constitutional principle.
Constitutional Understanding of ‘Family’ not ‘Marriage’
Lithuania’s Constitutional Court, while examining the constitutionality of Article 4(2)(16) of the Impugned Law, held that under the constitutional principle of the rule of law, legal regulations must be ‘clear, understandable, and consistent.’ [¶9]. The Court found that Article 4(2)(16) was insufficiently clear as it failed to define what information ‘disparages family values’ or what constitutes a concept of marriage and family formation ‘different from that established in the Constitution and Civil Code.’ To address the ambiguity, the Court drew a clear distinction between the constitutional concepts of family and marriage, emphasizing that the constitutional concept of family cannot be derived only from the institution of marriage. The Court established that the Constitution protects ‘all families that correspond to the constitutional concept of family’, which is based on substantive characteristics rather than formal structures. It noted that the defining characteristics include ‘permanent or long-term relationships,’ ‘mutual responsibility, understanding, emotional attachment, assistance and similar ties between family members,’ and a ‘voluntary decision to assume certain rights and obligations.’ Crucially, the Court emphasized that ‘the content of relationships, and the form of expression of these relationships is not of fundamental importance for the constitutional concept of family.’
While acknowledging that Article 38(3) defines ‘marriage’ specifically as between a man and woman, the Court explicitly stated that ‘unlike the constitutional concept of marriage, the constitutional concept of family is, among other things, gender-neutral’ [¶12.1.2]. The Court noted that this protection extends to various family forms, not just those based on marriage, and that ‘the form of expression of these relationships is not of fundamental importance for the constitutional concept of family.’ Thus, the Court found that restricting information about family models not based on marriage between a man and woman was unconstitutional, as such restrictions were ‘not necessary to protect the constitutional values’ and would prevent children from developing as ‘mature, comprehensive personalities’ [¶18.2].
‘Childhood’ as a Constitutional Value
The Constitutional Court held that the Lithuanian Constitution establishes childhood as a constitutional value. Drawing from Article 38(2) and Article 39(3), the Court established childhood as a ‘particularly protected and fostered’ constitutional value, recognizing it as a ‘special period’ of personality formation characterized by physical, mental, and social development. The Court viewed children as a ‘socially sensitive and particularly vulnerable part of society,’ which justified specific protections, but crucially, it rejected the notion that such protections should include shielding children from information about diverse family models. It emphasized that restricting information about different family models would ‘hinder the development of minors as mature, comprehensive personalities’ and contradict the state’s constitutional duty to ensure ‘harmonious and comprehensive development of the child.’ The Court held that, by limiting information about family diversity, Article 4(2)(16) violated children’s constitutional right to develop into well-rounded citizens capable of functioning in a democratic society based on ‘respect for human rights and dignity, as well as the values of equality, pluralism, and tolerance.’ The Court concluded that the interpretation of childhood as a constitutional value wouldn’t demand censorship but rather the ‘obligation to disseminate objective information to minors that reflect real social relations,’ making knowledge of family diversity an essential component of protected childhood development. [¶13]
Constitutional Court’s Guide to Modern Family
The Constitutional Court’s interpretation of the family as a ‘gender-neutral’ concept and its extension beyond traditional marriage-based relationships represents a progressive evolution. First, by explicitly stating that the constitutional concept of family is gender-neutral, unlike marriage, the Court creates a transformative framework that acknowledges the changing nature of social relationships and family structures. This interpretation marks a crucial departure from traditional, heteronormative understandings of family, recognizing that family bonds can exist independently of gender configurations. The Court emphasizes that the essence of family lies in the ‘content of permanent or long-term relationships’ characterized by mutual responsibility, emotional attachment, and voluntary commitment rather than in formal structures or gender combinations.
Second, the Court’s interpretation establishes a multi-layered understanding of constitutional protection for families. While maintaining the constitutional definition of marriage as between a man and a woman under Article 38(3), the Court creates a broader, more inclusive framework for family protection that operates independently of marital status. This sophisticated approach allows the Court to respect traditional constitutional provisions while simultaneously expanding protections to diverse family forms. Third, the Court’s emphasis on substantive relationships over formal structures advances constitutional principles of equality and human dignity. By focusing on the quality of relationships – mutual responsibility, understanding, emotional attachment, and assistance – rather than their formal status, the Court creates a more inclusive framework for family recognition. This interpretation aligns with ECtHR jurisprudence and modern constitutionalism values of pluralism, equality, and human dignity. [See Puppinck here]
The Court’s interpretation strengthens anti-discrimination principles in family law by explicitly stating that legal regulation must not create prerequisites for discrimination against various family relationships. This interpretation expands constitutionalism by requiring the state to actively protect and support diverse family forms. This interpretation opens numerous avenues for future constitutional litigation. In cases, concerning social benefits, housing rights, inheritance laws, or immigration policies, the Courts could apply this framework to challenge regulations that discriminate based on traditional family structures over other family forms. The interpretation could support claims for equal treatment in areas such as adoption rights, healthcare decision-making, and social security benefits for non-traditional families. The emphasis on substantive relationships over formal structures could be particularly relevant in cases involving de facto families, such as long-term cohabiting partners or non-biological parents who have established genuine family bonds.
Expanding Constitutional Values
The Constitutional Court’s recognition of ‘childhood’ as a constitutional value also represents an expansion of constitutional interpretation and protection for children. By establishing childhood as a distinctly protected constitutional value under Article 38(2), the Court created a robust framework that goes beyond basic legal protections to acknowledge the unique developmental nature of childhood itself. This interpretation recognizes that childhood is not merely a chronological stage but a critical period of personality formation encompassing physical, mental, and social maturation. Secondly, the Court strengthened this protection by explicitly connecting Article 38(2) with Article 39(3), creating a comprehensive constitutional shield that mandates both States to take proactive measures in creating an environment favourable to childhood development, rather than merely providing reactive protections.
The Court’s reasoning is also particularly significant as it moves beyond viewing children merely as objects of protection to recognizing them as rights-bearing subjects whose interests must be ‘taken into account first’ in all relevant decision-making processes. This shift in perspective could be instrumental in future cases where children’s participatory rights are at issue, such as in cases involving their right to be heard in decisions affecting them or their right to participate in public life appropriate to their age and maturity. This interpretation could be particularly relevant in future cases including family law cases, wherein ‘childhood’ as a constitutional value could influence decisions about custody arrangements, adoption policies, and child welfare interventions. In cases involving juvenile justice, this constitutional framework could support more rehabilitative rather than punitive approaches, given the Court’s emphasis on developing ‘honest people and loyal citizens.’
Leaving the LGBTQ+ Rights in the Closet?
While the ruling reflects progressive interpretation in expanding both family rights and child protection, it notably falls short in addressing the inherent discrimination against the LGBTQ+ community embedded in Article 4(2)(16). The Constitutional Court acknowledged that restricting information about different family models would hinder the development of minors as mature, comprehensive personalities, but it carefully avoided explicitly stating that the law was discriminatory against LGBTQ+ individuals and families. The Court maintained a more conservative judicial approach that, while achieving a positive outcome for LGBTQ+ rights, did not directly challenge the underlying discriminatory attitudes and practices that gave rise to the law in the first place.
This cautious approach reflects a broader pattern in European jurisprudence where courts often prefer to address LGBTQ+ rights through the lens of broader constitutional principles rather than direct anti-discrimination reasoning. [See the Concurring Opinion in Macatė] [Also, See Fedele] The Constitutional Court could have used this case as an opportunity to explicitly recognize that laws restricting information about same-sex relationships constitute discrimination based on ‘sexual orientation’, similar to the rationale of the ECtHR in Macatė wherein the ECtHR held that the restriction under Article 4(2)(16) was solely based on ‘sexual orientation’. [See Milkaitė here] This missed opportunity is significant given the growing jurisprudence of these restrictive laws in other European countries, including Bulgaria, Hungary and Russia, and the requisite for judicial precedents directly addressing such discrimination against LGBTQ individuals and community members.
