Can a Referendum Reverse Constitutional Meaning? Constitutional Adjudication, Family Rights and the Limits of Constitutional Amendment in Lithuania

This article examines whether an advisory referendum may legitimately be used to redefine the constitutional concept of family that has already been authoritatively interpreted by the Lithuanian Constitutional Court. The study is prompted by the recent proposal to amend Article 38 of the Lithuanian Constitution by means of an advisory referendum in order to define family exclusively through marriage between a man and a woman, motherhood and fatherhood. Using doctrinal and comparative legal analysis, the article explores the relationship between popular sovereignty, constitutional supremacy, constitutional adjudication and substantive limits on constitutional amendment. It analyses the jurisprudence of the Lithuanian Constitutional Court, the European Court of Human Rights, the Court of Justice of the European Union and selected European referendums concerning marriage and family rights. The article argues that the proposed amendment cannot be assessed solely from the perspective of referendum procedure or majority support. Rather, where a referendum seeks to reverse or narrow the constitutional meaning already authoritatively developed through constitutional adjudication, its constitutional legitimacy must also be examined in light of substantive constitutional limits, the principle of legal certainty, the protection of fundamental rights and Lithuania’s obligations under the European Convention on Human Rights and European Union law. The Lithuanian case illustrates a broader constitutional challenge concerning the relationship between constituent power, constitutional adjudication and the effective protection of fundamental rights in contemporary constitutional democracies.