Turkey’s top court is now more liberal than US Supreme Court

The U.S. Supreme Court legalized gay marriage across America in a historic ruling last week. However, the top court was divided sharply in its 5-4 ruling, with conservative judges like Antonin Scalia and Chief Justice John Roberts lambasting the decision. Scalia even went as far as to describe it as a “judicial putsch.”

Turkey’s top court also recently issued a controversial ruling regarding marriage, which international readers may have missed amid the flood of political news from Ankara. With its ruling on “Islamic marriage,” Turkey’s Constitutional Court, against all odds, showed that it is as liberal as the most progressive judicial institutions in Europe.

First of all, let’s summarize the case, which stems from a Turkish law that imposes jail sentences on couples who conduct a religious wedding before holding a civil one.

The case in an eastern Turkish province

A couple (both older than 18) in the eastern Turkish province of Erzurum were married in a religious wedding ceremony. According to a statement from the bride’s mother reported by the IHA news agency, the groom promised to have a civil marriage later on. However, before the necessary transactions for the couple’s civil marriage, they applied to the gendarmerie over a “conflict” between the spouses (as alleged by the bride’s mother), or over the pregnancy of the bride (as alleged by other relatives). This is how the authorities discovered that the couple had held a religious wedding before a civil one, subsequently launching a criminal investigation.

Meanwhile, the couple (who managed to reconcile and “become happy” according to the bride’s mother) and the imam (who conducted the religious wedding ceremony) ended up on the defendant’s seat at court. Paragraph 5 of Article 230 of the Turkish Penal Code (TCK) on “religious marriage ceremonies” imposes a punishment for their alleged crime of between six months and two years.

The Pasinler (a district in eastern Anatolia) Criminal Court of Peace then suspended proceedings without convicting the couple, referring the case to the Constitutional Court and requesting the annulment of these legal provisions, alleging that they are unconstitutional. The Constitutional Court examined the application on May 27 and ruled for the annulment of the said provision by 12 votes against 4, which amounts to a more unified liberal voice compared to the U.S. Supreme Court.

Will Turkey become a sharia state?

Despite its clearly liberal essence, several people, including a number of jurists, blasted the Constitutional Court over the ruling. Some even suggested that this could be the first step to turning Turkey into a sharia state! Among all the criticisms, the only point that made sense to me was voiced by Hürriyet columnist Taha Akyol, who is also a jurist by profession. 

Against the perspective that finds the ruling “liberal,” Akyol wrote that he wished “the Constitutional Court exercised the same diligence and sensitivity on freedoms while making its judgment that approved the ‘penal judge of peace,’ which was introduced with ‘sloppy laws.’” 

His wishes are quite reasonable. But should the Court insist on its previous incorrect attitude for the sake of being consistent in its rulings? In other words, should the Court take a decision against democracy and freedoms just because it did so in the past?    

As published in daily Hürriyet, the Bursa Orhangazi Criminal Court of First Instance applied to the Constitutional Court in 1999 for the annulment of the same regulation in the obsolete older version of the Turkish Penal Code. The Constitutional Court rejected that application unanimously with a “strictly secular” attitude. However, a state faithful to secular values without infringing on human rights would be expected to refrain from introducing a regulation on the legal status of a religious ceremony. 

‘Freedom of religion and conscience’

The opinions of four member judges who opposed the Court’s latest ruling in May, placing a similar emphasis on secularism, are also valuable. But it is self-evident that the 12 member judges who voted for the annulment of the provisions make up a significant majority, and their ruling emphasizes freedoms rather than restrictions and limitations. Just like the five judges of the U.S. Supreme Court who voted in favor of gay marriage.

The Constitutional Court ruling notes that the fact that the Turkish Penal Code punishes with imprisonment those who marry with a religious wedding ceremony - without punishing those who live together without a civil marriage - is contradictory to Article 10 of the constitution. It also states that its ruling is based on the principles of “freedom of religion and conscience” and “protection of private life.”

If not for this ruling, every couple convicted according to these legal provisions would have been able to apply to the European Court of Human Rights, and Turkey would be sentenced to pay compensation for violating human rights. 

To better understand this issue, forget about “religious weddings.” Ignore couples as well. Does it make sense to you for a religious official to be imprisoned for conducting a religious ceremony?

Think about the rights guaranteed in advanced democracies. For instance, is it possible to imprison an unmarried couple who benefit from all the rights granted to married people in Europe just because they conducted a Buddhist wedding ceremony?

Exceptionalism should not undermine rights
 
Of course, when it comes to Turkey the idea of “exceptionalism” emerges - as in all other fields of life from anti-terrorism to national education. We hear such excuses as “But we have different circumstances...,” “Yes, we occasionally violate democratic rights, but you should ask ‘why’ we do it...,” or “This law was adopted to prevent underage marriages in rural regions...”

First of all, a top court relying on democratic and libertarian values cannot be expected to tolerate provisions of law that lead to the collective violation of a right on account of the benefits that such provisions provide in exceptional cases.   

What’s more, the fact that this issue was not even mentioned - from the Bursa case in 1999 until the Erzurum case this year - clearly shows that this problematic legal provision was no deterrent anyway.

Otherwise, we would not today be complaining about underage marriages, which have increased drastically in recent years.    

As a result, what is expected of Turkey’s parliament is not for it to criticize the Constitutional Court for this ruling, but to pass new laws that improve women’s rights and prevent underage marriages, without infringing on human rights. The messages to this end by Family and Social Policies Minister Ayşenur İslam are quite positive.

Although many inconsistencies remain between court rulings in Turkey, a number of recent Constitutional Court rulings contributing to human rights, especially to freedom of expression, are undeniable. Last year, the Court revoked the government-imposed censorship on Twitter and YouTube, annulled a law that would have severely undermined judicial independence, and restored citizens’ rights that had been violated by other courts. Notably, many of the rulings were reached by unanimous decision.

My personal opinion is that the Constitutional Court’s latest ruling on religious wedding ceremonies has strengthened the libertarian case-law established by itself, and this case-law is a source of pride for Turkish democracy. Against all odds, that democracy is still alive with its long history that has gradually fostered the rule of law, checks and balances, and separation of powers.