Federal Constitutional Politics: The Big Picture of the EU-Hungarian LGTBQ+ Law Controversy

We’ve Got to Get our Shit Together if We Want to Stay Together

Hungary has been flouting liberal democratic norms for nearly a decade. In June 2021, it introduced a law regulating sex education and television programming for people under 18 to exclude ‘promotion’ of gay and transgender ways of being. Suddenly, the debate on how to deal with Hungary became strikingly emotional, with heads of government having tears in their eyes. The EU announced its intention to litigate the law. Dutch PM Rutte went so far as to state that he wanted Hungary to leave the EU, and that he wanted to bring Hungary ‘to its knees’ on this issue. All the sense of urgency about Hungary’s domestic politics which had been lacking for a decade was suddenly there.

Hungary’s new law sets the aim to prevent sharing information with under-18s that the government classifies as promoting homosexuality or gender change. There is every reason for concern that this could be misused or inappropriately managed so as to legitimize discriminatory or even more violently criminal treatment of homosexuals and transsexuals. 

Nevertheless, many aspects of the public debate about Hungary’s LGBTQ+ law worry us, which is not at all to say we support Orbán’s law. So many issues are implicated that it is not possible to wrap them up in one blog post. It’s a very interesting case rendered more interesting by the political response in Europe generally and within The Netherlands specifically.

We see staggering hypocrisy, politically motivated virtue signalling and the introduction of American style culture wars to European politics. But, more worrisome, we see a lack of interest in what it takes to maintain a stable democratic federation and we see political elites unwilling or unable to lead a responsible public discussion of the issues at stake. Taken together, we see elites willing to jeopardize the political stability of the EU for short term political gain.

Europe’s leaders are setting dangerous precedents for how to deal with the inevitable disagreements among Europeans on how to live our lives. While largely ignoring difficult but essential problems requiring nuanced solutions, namely Hungary’s constitutional backsliding, Western European elites have jumped at the opportunity to make simple statements that feel intuitively good, without much care for the consequences of their words for the people involved. It’s a staggering lack of either interest in or perspective on the requirements of liberal democratic constitutional politics.

In the series of blog posts that will follow, we will discuss the events surrounding Hungary’s LGBTQ+ law and put them in a wider strategic and constitutional context. We will explain our worries about how the public debate about Hungary’s law developed, especially with regards to how this debate may affect democratic federalism within the EU. We will look at some of the stranger incoherencies of the European discourse on the issue in light of that broader constitutional perspective. We will examine the short and long run interests of political leaders and citizens from different groups (majority leaders, minority leaders, and different blocs of citizens) in Hungary, and Western European dissenting states like The Netherlands. And, finally, drawing from all of those elements we will formulate some rough guidelines for how we think pan-European public debates should play out instead when similar issues are at stake. We will also highlight some tough questions about contemporary thinking about constitutional political, economic, and social rights, and their implications for constitutional stability more generally.

So, here at the Leviathan’s Couch, the EU is going to be one of our first patients. 

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