Procedural Posture
The District Court of Justice heard the case after an injunction, granted in favour of the appellant organisation, was dismissed by another court on procedural grounds.
Facts
Hatter Barati Tarsasag a Melegeker Egyesulet, the appellant, was an LGBT group. The government recognised Hatter as a group having kiemelkedöen közhasznú, or “pre-eminent standing”. The term referred to non-profit organisations that the government believed to be of outstanding public benefit. In order to achieve pre-eminent standing, an organisation’s goals and activities had to overlap with those of the central or municipal governments, in other words support the State’s functions. Hatter’s objectives were “the establishment of new institutions and services aimed at the better social integration of the gay and lesbian community in the public and civil spheres”.
On 11 July 2001 Hatter finalised a contract with the defendants, the organisers of Budapest’s Pepsi Sziget Festival, which was one of the largest music and cultural festivals in Europe. Hatter planned to provide information and educational materials on homosexuality and HIV/AIDS. Hatter had participated in the 1999 Sziget Festival in a similar capacity.
However, prior to Hatter’s 2001 participation agreement, the local mayor informed the festival’s organisers by letter that he would not consent to any homosexual-related activities at the festival. The letter was dated 3 July 2001. On 10 July 2001, the organisers amended the contract forms to State that there would be: “no educational or any other type of programme related to homosexuality, under whatever designation. This serves the purpose of protecting juveniles and also the interest of safeguarding those who think differently.”
Issue
Whether the contract’s terms were unconstitutional, thereby rendering the contract void.
Domestic Law
Civil Code of Hungary, Sections 76 (prohibiting discrimination against private persons on the grounds of gender, race, ancestry, national origin, or religion; protecting freedom of conscience; prohibiting any unlawful restriction of personal freedom; prohibiting injury to body or health; providing that contempt for or insult to the honour, integrity, or human dignity of private persons shall be violations of inherent rights); and Section 200(2) (providing that any contract violating or evading legal regulations “shall be null and void”).
Constitution of Hungary, Article 60 (protecting freedom of thought, conscience, and religion), Article 67 (guaranteeing the right of children to receive the protection and care of their family, and of the State and society, which is necessary for their satisfactory physical, mental and moral development); and Article 70/A (ensuring the human rights and civil rights of all persons without discrimination).
Reasoning of the Court
The Court decided that the contract between Hatter and the festival organisers was procedurally valid and that, therefore, the provisions prohibiting activities relating to homosexuality were valid. Having failed to prove that the contract was procedurally void on this ground, Hatter argued alternatively that the discriminatory nature of the contract violated Hatter’s constitutional rights.
Section 200(2) of the Civil Code of Hungary provided that any contract that violated legal regulations or evaded legal regulations “shall be null and void”. Hatter argued that the terms of the contract violated Articles 60 and 70A of the Constitution and Section 76 of the Civil Code. Article 60 protected freedom of thought, conscience, and religion. Section 76 broadly prohibited “[d]iscrimination against private persons on the grounds of gender, race, ancestry, national origin, or religion; violation of the freedom of conscience; any unlawful restriction of personal freedom; injury to body or health; contempt for or insult to the honor, integrity, or human dignity of private persons.”
The Court declined to consider a Section 200(2) violation based on Article 60 and Section 76. It focused instead on Article 70A of the Constitution, which stated that “[T]he Republic of Hungary shall ensure the human rights and civil rights for all persons on its territory without any kind of discrimination such as on the basis of race, colour, gender, language, religion, political or other opinion, national or social origins, financial situation, birth or on any other grounds whatsoever”.
The Court held that this protection against discrimination extended to “differential treatment based on sexual orientation” and applied to organisations as legal personalities. However, the Court also recognised that, although sexual orientation was a protected classification, this constitutional right could be legally – indeed, necessarily – restricted. It stated that when “fundamental constitutional rights need to be weighed against one another, then it needs to be reasonably assessed how and to what degree one may be restricted vis-à-vis the other”. The defendants and Court agreed that prohibiting Hatter’s presence at the Sziget festival implicated two constitutional rights. On one hand, prohibiting Hatter’s participation would violate the group’s right to be free from discrimination based on sexual orientation. On the other, it was claimed that Hatter’s participation might violate the rights of children, as set out in Article 67 of the Constitution, namely: “all children have the right to receive the protection and care of their family, and of the State and society, which is necessary for their satisfactory physical, mental and moral development”.
The Court weighed the importance of these constitutional rights and concluded that Hatter’s right to be free from discrimination based on sexual orientation outweighed the rights of children in Article 67. It found any risk to children to be speculative. In the Court’s opinion “the specific risk that is manifest when a child joins a homosexual association, and which may justify restrictions, is not given in the current situation”.
The Court ruled in favour of Hatter and held that the contract was void under Section 200(2) of the Civil Code. The contract’s anti-LGBT provision clearly violated the “spirit of the Constitution”. Moreover, Hatter’s status bestowed on the group standing to appear and operate in public. The Court stated that, while it was “evident that the public display of … [Hatter’s] ‘otherness’ and the furthering of the societal acceptance thereof is only possible within such boundaries as do not violate the rights or rightful interests of others”, and though children had a legitimate claim to protection, their protection at the expense of Hatter’s rights would perpetuate and promote existing social prejudices against sexual minorities.
Thus the Court ruled that the contract’s discriminatory provision violated Hatter’s constitutional rights, and that the constitutional right of children to be protected from negative effects of contact with an LGBT organisation did not, in this case, justify limiting the LGBT organisation’s constitutional rights. Because the event had passed, the Court awarded Hatter monetary damages.
Hatter v. Pepsi Sziget, Budapest 2nd and 3rd District Court of Justice, Hungary – Hungarian (full text of judgment in Hungarian, PDF)
