Switzerland – 2021 Review of Constitutional Law: Realm, Limits, and Legitimizing Capacity of Direct Democracy

Abstract

In a series of referenda held in 2021, Swiss citizens extended civil marital status to male-male and female-female couples (same-sex marriage), banned wearing face coverings in public, twice approved government measures to curb the spread of COVID-19, and rejected a constitutional amendment seeking to deprive the political parties of their role as gatekeepers of the judiciary by appointing the judges of the Swiss Federal Supreme Court by lot. The federal judiciary thus remains firmly in the hands of the political parties, making it virtually impossible for a candidate not affiliated to one of the political parties represented in the Federal Parliament to be elected as a judge of the Swiss Federal Supreme Court. Against the backdrop of the ubiquitous character of direct democracy in Switzerland and alluding to the introduction to each of the ‘Adventures of Asterix’, a French comic book series, the Federal Supreme Court hence continues to bear resemblance to the ‘one small village of indomitable Gauls’ that ‘still holds out against the invaders.’ By extending civil marital status to same-sex couples (‘marriage for all’) in a referendum, ‘[s]upporters of same-sex marriage’ successfully engaged in what John Roberts, the chief justice of the Supreme Court of the United States, urged activists to do: to persuade ‘their fellow citizens – through the democratic process – to adopt their view’ (Obergefell v. Hodges, 576 US Supreme Ct 644, 686 (2015) (Roberts, C. J., dissenting)). Also in 2021, the Swiss Federal Supreme Court dismissed an appeal by Carster Semenya against an award by the ‘Court of Arbitration for Sport’ (CAS), headquartered in Lausanne, Switzerland, holding that the ‘testosterone rules’ by World Athletics (at the time: ‘International Association of Athletics Federations’) failed to amount to a breach of Switzerland’s ‘ordre public matériel’ (‘substantive public order’). In the same year, the Federal Supreme Court handed down further important judgements: one on hate speech by a Member of Federal Parliament and another on the right to privacy regarding ‘smart’ water meters.

Keywords: selecting judges by lot; same-sex marriage; Obergefell v. Hodges (dissent John Roberts); ban on wearing face coverings; popular vote on COVID-19-measures; Semenya v Switzerland; ‘testosterone rules’ and human rights; hate speech by elected politicians; data protection and ‘smart meters’; Astérix

JEL Classification: K10, K32, K40, K33, K19, K23