Interpretational role of the Constitutional Court of the Russian Federation as a factor of institutionalization of the traditional family values in Russia

Cheprasov Konstantin Viktorovich PhD in Law Senior Lecturer at the Department of Constitutional and International Law of Altai State University 656049, Russia, Altaiskii krai, g. Barnaul, Prospekt Sotsialisticheskii, 68, kab. 412 Torquemada89@mail.ru Other publications by this author

The Constitution of the Russian Federation which in the Article 2 claims an individual, his rights and freedoms the highest value, gives grounds to suggest that there is a gradation of these values standing in a certain hierarchical correlation. However, the Constitution of the Russian Federation does not contain positions that secure such hierarchy, thus it is reflected in jurisdiction of the Constitutional Court of the Russian Federation. The impact of CCRF (which acts as a “guard” of the Russian Constitution and the established by it fundamental constitutional values) upon the development of state legal and social institutions is versatile and undisputable ^[1].

For quite some time with periodic consistency, a discussion takes place within the Russian legal science on the need, or on the contrary, infeasibility of the normative influence of government authorities upon the establishment of morally-ethical sphere of human life ^[2]. This is why it no longer seems marginal that an effective and successful work of the public authority apparatus of the constitutional state is possible only within the strict boundaries of the constitutional legal ideology, which embodies the highest – rational ideological level of constitutional legal consciousness ^[3].

It is now evident that in interpretation of the Constitution of the Russian Federation and formulation of legal positions, in some of its decisions the Constitutional Court endows some positions of the basic law with certain ideological content. In essence, the Constitutional Court, revealing the content of various constitutional values, targets and even programs society towards particular behavioral stereotypes, as well as sets a preferable (general) philosophical-social ideological trend. As noted by N. S. Bondar, “Constitutional Court of the Russian Federation is a generator of constitutional ideology, creator of a new constitutional culture, constitutional outlook of an individual and society” ^[4]. In the scholar’s opinion, judicial constitutionalism ensures gradual harmonization of the legal language and constitutional spirit, as well as brings its formal legal content into compliance with the “social standardization”, at the foundation of which lie the actual relations of political dominance, as well as economic and social organization of the society and the state ^[4].

The most precise reflection of the constitutional-interpretational role of the CCRF we can observe in Judgment from September 23, 2014 No. 24-P “On the case concerning the review of constitutionality of Section 1 of Article 6.21 of the Administrative Offences Code of the Russian Federation in connection with the complaint of N. A. Alexeev, Y. N. Yevtushenko and D. A. Isakov” ^[5]. In the aforementioned Judgment, the Court verified the constitutionality of the established by the Code of the Russian Federation on Administrative Offenses prohibition of propaganda of homosexuality among minors. Not limiting itself just to the legal questions, the Constitutional Court notes that the Russian Constitution does not give grounds for recognition of the unconditional lawfulness of public activity aimed at defamation, leaning towards the rejection of constitutionally important ethical values that are predetermined by the historical, cultural, and other traditions of the multinational population of Russia. From the Court’s perspective, the corresponding Russian legislation is based on the traditional humanistic ideas in the context of specificities of the national and confessional composition of the Russian society, its sociocultural and other historical characteristics, including the established in Russian society (and supported by all traditional religious confessions) ideas on marriage, family, motherhood, fatherhood, and childhood, which obtained its formal legal confirmation in the Russian Constitution, as well as on their extrinsic value. Therefore, the distribution by an individual of their beliefs and preferences pertaining to sexual orientations and certain types of sexual relationships should not impinge on dignity of other persons and cast doubt on public morality in its perception, established within the Russian society.

It is noteworthy that the Constitutional Court of the Russian Federation makes an accent of predetermination of the constitutional values by the historical and cultural traditions of Russia’s multinational population. Moreover, the Court draws a conclusion that the considered constitutional values of protection of family, motherhood, fatherhood, and childhood fully correlate with the religious traditions of the Russian ethnic groups, as well as with the public morality within the meaning established in Russian society.

This judgment of the CCRF is of fundamental importance for the Russian legal system, first and foremost because namely the questions of “gender equality”, “rights of sexual minorities”, and “same-sex marriages” are currently the most ideology-driven within the framework of the human rights concept. We cannot but agree with V. D. Zorkin who notes that “the “infatuation” of the modern European lawyers with protection of the rights and liberties of individuals with untraditional sexual orientation has taken on grotesque shape” ^[6]. Considering the fact that at times a similar LGBT-oriented approach can lead to tragedy (as for example, in a traditionally Orthodox Serbia, when the rejection of the aggressive propaganda of homosexuality resulted in mass riots), the researcher is being blunt about the compatibility of the concept of “gender equality” alongside the equivalence of traditional and untraditional ideas on inter-gender relations with the ethos of the multinational population of Russia. V. D. Zorkin asks himself: “It is the easiest to right off these riots as extremism of certain nationalist and fascist powers. But what if it is an actual discontent of the majority of citizens of a specific country, which protests against the actions of the minority, the actions, which violate the cultural, moral, and religious codes?” ^[6].

It would seem that Zorkin’s fears are completely justified. Furthermore, the confirmation of the seriousness of the shift in treatment of the image of people, family, and childhood that can be seen in the political legal practice of many Western countries, we should note certain troubling documents. For example, the “Standards for Sexuality Education in Europe”, a document developed by the European regional bureau of the World Health Organization and is a framework document for policymakers, leaders and specialists in the area of healthcare, establishes an unequivocally positive image of untraditional sexual relations, same-sex marriages, etc. ^[7]. Moreover, the standards also state that a necessary element of realization of the child’s right to information is sexuality education that starts at age zero. The various supporting tables explain exactly what the child should know (by age). For example, at the age of 0-6 years the children should be provided with information on the basics of various types of sexual acts, on feeling of joy and pleasure from touching one’s self, masturbation at an early age, and encouragement to develop their sexuality and realization of their gender identity ^[8]. Such program positions are already being actively implemented into the political legal practice of many Western countries.

At the same time, it is necessary to note that in the legal science there are critical points of view due to the Judgment from September 23, 2014 No. 24-P by the Constitutional Court of the Russian Federation. For example, in her critique of the Court’s judgment, O. N. Kryazhkova concludes that “a new round in the fight for the rights of sexual minorities has been completed. Its summary is more of a small step towards confirmation of the rule of law, rather than a decisive victory of this principle over the entrenched stereotypes (cursive – K. C.) ^[9]. But the author’s arguments cause some confusion, since the traditional views of the multinational population of Russia on family, motherhood, fatherhood, and childhood are being categorically declared by her as “entrenched stereotypes”, without even considering them to be constitutional values that are called to protect the nation.

Some authors are more outspoken in their opinion on the new European ideological trends in the sphere of children and families. For example, some scholars of sociology, referring to the publications in European journals dedicated to gender topic, state that the modern trends in this area “include dilution of the social institution of marriage and spread of new forms of legitimate partnerships – such as civil union; ...progress in the sphere of equality of men and women, as well as representatives of sexual minorities. The point in all these changes is in removal of the limitations that existed in the traditional institution of marriage, expansion of the options of personal choice between various forms of organization of family life, same as between the family and other areas of life…” ^[10]. Moreover, the authors align themselves with the position according to which the “modernized changes in the demographic sphere are an important element of the overall process of modernization” and that it is necessary to include “normative views pertaining to the sphere of family, sexual, and gender relations into the ranks of the most important indicators of these changes” ^[10].

It seems obvious that such reasoning is highly ideologized, while the attempt to present corresponding deformation (mutation) of the institution of marriage in some Western countries as an objective process does not stand up to criticism. In essence, the modern Western trend of “gender tolerance” has emerged as recently as the second half of the twentieth century, and prior to that moment the classic bourgeois society held traditional family values with patriarchal element.

According to fairly reputable scholars, whose hypotheses remained unchallenged, namely the traditional bourgeois family represents the minimum minimorum of the atomized society of the Modern era. For example, in reasoning on the process of development of social relations during the transition from the patriarchal system to slave-owning system, Paul Lafargue states that “When the domains that were consolidated under the authority of a patriarch have collapsed, the family was reduced to their bourgeois minimum – father, mother, and children… Having left the patriarchal family with his wife and children, a man would end up in the material and intellectual situation of a man from the bourgeois environment, who now works not for the collective, but for himself” ^[11]. In addition to that, in researching the myth about Prometheus, Paul Lafargue states that his separate episodes “also serve as memories of the events that destroyed the patriarchal family and prepared the arrival of the bourgeois family, consisting of ne domain, family, that remains until today” ^[12].

The bourgeois family as the basic unit of the capitalist society (modern society) was also recognized by Friedrich Engels in his work “The Origin of the Family, Private Property, and the State” ^[13], separate positions of which are still recognized today as being relevant ^[14].

The aforementioned positions fairly boldly manifest the ideological conflict with regards to the essential content of a number of basic constitutional and social values and norms that are intrinsic to the modern society. The example with the institution of family demonstrates the far-reaching transformations of the classic bourgeois humanistic values in the majority of the Western countries. It always questions the universalistic character of such newly emerging values that are a product of the post-modernistic mutations. In any case, both positive and negative attitude towards such post-modernistic values can be structured only via an ideological position in the process of cognition. Moreover, the presumptuousness of the post-modernistic ideological bias often takes phantasmagoric forms, when intellectual violence over the classic Western bourgeois philosophical thought is used to substantiate a position. For example, the already mentioned sociologists M. Fabrikant and V. Magun introduce the opinion of the American scholars A. Thornton and L. Young-DeMarco, who claims that the modern processes of deformation of the institution of family in the West are no less than the further and more gradual implementation of the “proposed by the Enlightenment ideals of freedom, equality, and tolerance” ^[10]. The justification and objectiveness of such statements (along with the speculative substitution of the ideal of “brotherhood” with the notion of tolerance) cannot but evoke substantial skepticism.

The logical and ideological constructs upon such an acute topic cannot be possibly established without taking into account an objective reality in one or another state. Multidimensional complexity of the examined legal and social phenomena first and foremost has to correlate with the advanced in the society and the traditional to it social norms and values, in other words, considering the opinions of the democratic majority.

In this regard, a public opinion survey “ACSR-4” conducted by the Agency for Cultural Sociological Research (ACSR) in 2014 presents a great scientific interest. The number of participants amounted to 43,887 people from all regions of the Russian Federation, with the exception of Crimea and Sevastopol. The data acquired from this survey with absolute unambiguity proves the presence of the traditional (conservative) value trend in the sphere of family among the overwhelming majority of Russia’s population. We will provide some of the results from the surveys ^{[15, 16]}.

It is noteworthy that to the question of what should be the order of changes in legislation, i.e. the questions pertaining to the fundamental values of Russians, 65.9% of respondents supported the nationwide referendum. The representative bodies of various levels do not have public trust ^[15].

Along with the questions on family and childhood, the respondents were being asked about their attitude to untraditional sexual relationships. Thus, to the question “Express your attitude to the possibility of implementation in Russia of the Law that establishes criminal responsibility for homosexuality (same-gender sexual relations)” – 49.6% of respondents said that they fully support such initiative, 29.2% are not sure, and 20.2% are totally against it. A question was also raised that directly related to the Constitutional Court Judgment from September 23, 2014 No. 24-P. Thus, to the question “Express your attitude to the possibility of introduction of Law that establishes criminal responsibility for propaganda of homosexuality (same-gender sexual relations), including holding pride parades, etc.” – 71.8% of respondents said that they fully support such initiative, 9.7% are not sure, and 11% are totally against it ^[15]. These results demonstrate that the overwhelming majority of Russian citizens are extremely traditional and conservative about the questions of family, childhood, and intersexual relations. Moreover, many ideologized speculations pertaining to the concept of “gender equality” are being completely debunk by the answers to the question “Express your attitude to the possibility of implementation in Russia of the Law that establishes that the gender is not set by birth, but is a result of upbringing, and should be determined by a free choice of parents (custodians) or a child himself; and then, the necessary medical help (such as surgeries, etc.) should be provided to the chosen gender” – 80% of respondents said that are totally against it, 15% are not sure, and only 2.5% fully support such initiative ^[16].

Based on the foregoing, it becomes evident that calls for “modernization” of public consciousness by the researchers who perceive multinational population of Russia as something outdated that does not fit into the Western trends, are at least in a deep contravention with the sovereign will of democratic majority. As writes V. D. Zorkin, “While contradicting the basic value and morally-ethical orientations of social majority, it is impossible to support such trends of transformation of the “ethical law inside us”, which are completely rejected by social majority” ^[17]. The opinion of minority, according to the norms of democracy, must be considered, but it cannot become absolute at least because of the very nature of democracy.

Considering the actual state of the modern Russian society, the Constitutional Court Judgment from September 23, 2014 No. 24-P seems very proper. Therefore, when the Court justifies that “The meaning… of constitutional positions hold that the family, parenthood, and childhood in their traditional understanding passed through the generations represent the values that ensure uninterrupted succession of generations, act as the conditions for preservation and development of the multinational people of the Russian Federation, and thus require special protection from the state… regulation of the freedom of expression and freedom of proliferation of information does not presuppose creation of conditions that would contribute to formation and establishment of the interpretation of the institution of family and associated social and legal institutions within the society that would differ from those that are commonly accepted” ^[5], the Court institutionalizes certain ideological trend in the area of family and childhood, gearing itself towards the social values of the democratic majority of the Russian people.

In addition to this, the Constitutional Court has also perfectly executed its function of maintaining balance of constitutional values and upheld the principle of proportionality in their constitutional protection. From the perspective of the principle of proportionality, it is necessary to meet a number of criteria such as justification, usability, minimality and balance ^{[18, 19]}.The justification of limitation of constitutional rights in the Constitutional Court Judgment from September 23, 2014 No. 24-P is substantiated by direct establishment of the bases for limitation in Part 3 of the Article 55 of the Constitution of the Russian Federation. The criterion of usability, which presupposes presence of reasonable connection between the goal and the means in limitation of constitutional rights have also been upheld, since such limitation is justified by the need to protect the vital interests of the democratic majority of the multinational population of the Russian Federation. Moreover, the existence of ban on the propaganda of homosexuality among minors does not imply ban on freedom of expression of opinions addressed towards other age categories of citizens. The criterion of minimality, which establishes that for a justified and useful purpose the least cumbersome limitations should be applied towards an individual, seems to also be met by the Court. The form of limitation (administrative responsibility) and its non-absolute character, based on the importance of the constitutional goals, certainly correspond with the legal positions of the European Court of Human Rights, according to which “By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the "necessity" of a "restriction" or "penalty" intended to meet them” ^[20]. Maintaining the criteria for balance as a requirement for establishing equalization of the conflicting constitutional values (private and public interests), the Court rightfully substantiated by the fact that the limitation of the constitutional rights is justified by the aim “to prevent harm to the health of minors, their moral and spiritual development, and does not propose intervention into the sphere of individual autonomy… does not obstruct unbiased public discussion of the issue of the legal status of sexual minorities, as well as their use of all legal means of expression of their position on these issues… including organizing and holding public events” ^[5].

Thus, basing on the presented sociological material and theoretical works, as well as in the analysis of the legal position of the Constitutional Court of the Russian Federation, expressed in the in the Judgment from September 23, 2014 No. 24-P, it is necessary to acknowledge that in resolution of the case the Court did not limit itself to only the questions of law, but also realized the ideological formalization of the socio0legal reality. In its role, the Court based itself upon the traditional understanding of the good of the Russian society on one hand, but on the other – the Court created certain ideological constructs that in turn affect the society itself.

Taking into consideration the modern Western trend of mutation of the institution of bourgeois family and classic bourgeois morals, it is absolutely clear that such post-modernistic “mutated” bourgeois trends cannot contend for the panhuman universalism, and thus Russia is facing the task of ideological self-identification based on the succession of the national-historical way of life. The optimal instrument for building these processes, without collision with the position of the Article 13 of the Constitution of the Russian Federation, would the amending and interpretational activity of the Constitutional Court of the Russian Federation.