'Royals' What if the heir to the throne was homosexual?
No obstacle in the Netherlands
'Royals' The Duke of Bavaria, first head of a European royal house to reveal his homosexuality
Is Spain prepared to have a
homosexual King or Queen
, who could marry
someone of the same sex
and have children through a different path than those born of marriage between a man and a woman who are recognized as holders of inheritance rights?
These are very pertinent questions after what happened this week in the Netherlands, one of the 10 parliamentary monarchies - including Spain - in Europe today. Dutch Prime Minister
Mark Rutte
has responded to several parliamentary questions stating that "the Government believes that an heir to the throne can marry someone of the same sex, without this being a reason for him to abdicate." The majority of the members of the House of Representatives in The Hague have supported these words. And Rutte has already committed to a
change in the Act of Succession to the Throne
, which regulates all aspects related to
dynastic rights in the Netherlands.
, so that if the eldest daughter of the kings Guillermo and Máxima, Princess Amalia (17 years old), or any future heir,
declares herself openly homosexual, she will
have all the legal pathways clear so as not to compromise the stability of the Crown.
The Netherlands thus once again demonstrates why it is
one of the most advanced countries in the EU
, a pioneer in all kinds of social rights.
It can become the first country to regulate these aspects that would affect an institution such as the parliamentary monarchy, in constant renewal.
But, in reality, this is a debate to which they will not be able to remain oblivious in the rest of the crowned countries of the continent, because in almost all of them -with notable exceptions such as Liechtenstein-
homosexual civil unions already have all the blessings of the Law
.
And, for this reason, it would not be understood that the only ones who continue to be discriminated against in this area were the members of their dynasties.
Princess Amalia of the Netherlands.GTRES
In Spain, as with almost everything related to the Monarchy,
everything is legal holes.
On the one hand, this would allow different legal interpretations in the face of eventualities that have never occurred. But, on the other hand, it would turn into pitched battles between the different parties the
decision-making so sensitive
that they affect the Head of State and the future of the royal family.
Constitutionalists of such prestige as
Antonio Torres del Moral have
lamented for many years the laziness of successive governments and the Legislative Assembly to carry out the necessary reforms in the Magna Carta that affect the Crown, including that of ending the Constitution once and for all. anachronistic prevalence of the male in the order of succession. Torres del Moral goes further and emphasizes to LOC that "all Title II of the Constitution, the one related to the Crown, should have been retouched a long time 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,
were a lesbian
, Del Moral warns that it would
raise serious legal problems
because it is not a case that our laws contemplate. Of the Constitution, he points out that what is related to the Crown is written in certain
terms and with a "masculine" spirit,
when it was unthinkable to consider these assumptions. And he does not believe that this debate is mature enough nor does he consider that the Sánchez government and the current Parliament are going to face the necessary reforms.
Article 57.5 of the Constitution provides that "
abdications and resignations
and any question of fact or law that occurs in the order of succession will be resolved by an
organic law
."
But this is not there, 45 years later, nor is it expected.
Without permission of the Cortes
If we analyze the
current legislative framework,
we find the following. Spain is one of the few European kingdoms where members of the royal family - including the current holder of the Crown and his heir
- do not need to ask permission from the Cortes to marry,
unlike what is established in other countries such as the same Holland. So, to continue with the initial hypothesis, in the future
Doña Leonor would not have to ask
the representatives of the national sovereignty
for
permission
to
marry if she wanted to with a woman.
Of course, article 57.4 says that "those persons who, having the right to succession to the throne, contract marriage against the express prohibition of the King and the Cortes Generales, will be
excluded from the succession to the Crown
by themselves and their descendants." So, if that
homosexual union
were announced
,
what
could happen is that a majority of parliamentarians expressed their refusal
, which would pose a serious conflict. But even here the Legislator has left all sleeve for shoulder. It has not been established whether that rejection would have to come from both houses -Congress and Senate-, or what would happen if the majority of the Lower House and the Upper House disagreed on that union. It is also not resolved
what would happen if the opinion of the Cortes and that of the King did not coincide.
It is not known whether the Monarch would need an endorsement or not to reject the marriage of his heir. Everything is a legal hole.
On the other hand, the Royal Decree of 1987 -modified in 2014- on treatment and honors of the Royal Family, clearly establishes that
"the consort of the King of Spain will receive the name of Queen"
and that
"the consort of the Queen will be entitled dignity of Prince "
.
This, as Del Moral maintains, lends itself to few interpretations.
That is to say, today
it is only contemplated that the King could marry a woman, and the Queen with a man.
The legislator has not been concerned about the dignity and treatment of consorts resulting from a homosexual union, which leads many jurists to argue that with the current legislation it would not be possible.
His children would have the right to reign
Finally, another no less difficult issue is that of children, that is, that of the hypothetical holders of inheritance rights.
Once again, the
lack of foresight and neglect that the constituents showed in the Transition
with everything related to the Head of State, makes our Basic Law have more holes in this very important area.
Unlike what happens with practically all the Constitutions of the countries with a monarchy in Europe, in the Spanish one
nothing is said about children born of the legitimate marriage
or out of it. So that if a King had descendants outside his marital union, and they obtained the recognition of his blood, they 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. Or the recent recognition by the Belgian Justice of Delphine Boël as the daughter of King Albert, already abdicated. These cases have not generated institutional problems because in both countries
illegitimate descendants are expressly removed from the throne.
Paradoxically, the lack of regulation in Spain in this case would allow that if a King or Queen contracted homosexual marriage and
had children through means such as adoption or artificial insemination
, they
would have full inheritance rights.
And there will still be those who argue that there is no need for a Crown Law to regulate once and for all the thousand issues today in limbo that affect the institution on which our entire institutional framework pivots.
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