Is Spain prepared to have a gay king or queen, who could marry someone from his same sex and have children for a different road to that of the births of marriage between a man and a woman who was recognized as headlines of next rights?
They are very relevant questions after what happened this week in the Netherlands, one of the 10 parliamentary monarchies -including Spain- that there is today in Europe. The Dutch Prime Minister Mark Rutte has responded to several parliamentarian questions by holding that "the government believes that an heir of the throne can marry someone of the same sex, without this being a reason for him to have to abdicate." Most members of the House of Representatives of the Hague have supported these words. And Rutte has already committed to a change in the succession of the throne, in which all aspects related to the dynastic rights in the Netherlands are regulated, so that if the first-born of the Kings William and Maximum, the Princess Amalia (17 years old), or any future heir, became openly homosexual, has all the clear legal path so as not to compromise the stability of the crown.
Holland returns to demonstrate why it is one of the most advanced countries of the EU, pioneer in all kinds of social rights. It can become the first country that regulates these aspects that would affect an institution as the parliamentary monarchy, in constant renewal. But, in reality, this is a debate that they will not be able to stay oblivious in the rest of the continent crowned countries, because in almost all of them - with sound exceptions like Liechtenstein- Homosexual civil unions already have all the blessings of the law . And, therefore, it would not be understood that the only ones that were followed by discriminating in this field outside the members of their dynasties.
In Spain, as it happens with almost everything related to the monarchy, everything is legal holes. On the one hand, this would allow different legal interpretations to eventualities that have never been ever given. But, on the other hand, it would become camping battles among the different parties, making so sensitive decisions that affect the head of the State and the future of the royal family.
Constitutionalists of both prestige and Antonio Torres del Morale for many years have long lament for many years the successive governments and legislature to carry out the necessary reforms in the Magna Charter that affect the Crown, among them to finish at once with the Anachronistic prevalence of male in the successory order. Moral Towers goes further and underlines Loc that "all Title II of the Constitution, the relative to the Crown, should have been retouched long ago, because it needs updating and not a few changes."
Asked about the specific question of what would happen if our heir to the throne, Princess Leonor, Lesbian, of Moral warns that it would raise serious legal problems because it is not a case that contemplate our laws. Of the Constitution, he points out that what regarding the crown is written in terms and a "masculine" spirit, when it was unthinkable these assumptions. And he does not believe that this debate is mature enough or he considers that the government of Sánchez and the current Parliament will face the necessary reforms.
Article 57.5 of the Constitution provides that "abdications and renunciations and any doubt or of law that occurs in the order of succession will be resolved by an organic law." But this is not, 45 years later, nor is expected.
Of course, article 57.4 says that "those people who have the right to succession in the throne contracted marriage against the express prohibition of the king and the general cuts, will be excluded in the succession to the crown by itself and their descendants." So, if that homosexual union was announced, what could happen is that a majority of parliamentarians express their refusal, with which a serious conflict would be raised. But even here the legislator has left everything manga per shoulder. It has not been established if that rejection would have to be of the two cameras -congress and Senate - or what would happen if the majorities of the lower house and high discrete on that union. Nor is it resolved what would happen if the opinion of the courts and that of the king did not coincide. Nor is it known if the monarch would need to endorse or not to reject the marriage of him heir. Everything is a legal hole.
On the other hand, the Royal Decree of 1987 -modified in 2014- on the real family treatments and honors, clearly establishes that "the consort of the king of Spain will receive the denomination of Queen" and that "the consort of the Queen will correspond to the Dignity of Prince ". This, as sustained from morality, lends itself to few interpretations. That is, today it is only contemplated that the king could marry a woman, and the queen with a man. The legislator has not been concerned for what would be the dignity and treatment of consortes as a homosexual union, which leads many jurists to argue that with current legislation it would not be possible.
Finally, another issue no less belly is that of children, that is, that of the hypothetical holders of succession rights.
Once again, the lack of foresight and leaves that demonstrated the constituents in the transition with everything related to the headquarters of the State, makes our fundamental law more holes in this very important land. Unlike what happens with the practice of all constitutions of countries with monarchy in Europe, in Spanish, nothing is said about children born of legitimate marriage or outside of it. So if a king had descendants outside the marital union of him, and these obtained the recognition of him, would have the right to reign. It is easy to imagine the great institutional crisis that this would cause. We have seen cases like that of the two extramarital children recognized by Alberto de Monaco. O The recent recognition by the Belgian justice of Delphine Boël as the daughter of King Alberto, already abdicated. These cases have not generated institutional problems because in both countries illegitimate descendants are expressly separated from the throne.
Paradoxically, the lack of regulation in Spain in this case would allow if a king or queen contradict homosexual marriage and had children by ways such as adoption or artificial insemination, these would have full sectoral rights.
And there will still be the one who has not needed a law of the crown that regulates once the thousand issues today in the limbo that affect the institution on which it pivots all our institutional framework.
Twitter: @orleans_luisUpdated Date: 16 October 2021, 10:09