Abstract
The paper deals with the topic of conflicts between human rights protection and referendums. Firstly, the examples of same-sex marriage in the United States and a ban on building minarets in Switzerland are introduced.
In the U. S., a conflict has recently arisen between state constitutional amendments passed in a referendum banning same-sex marriage on the one hand, and case law of a number of appellate courts who believe such amendments to be in breach of the Fourteenth amendment of the Federal Constitution.
Switzerland has recently passed, also in a referendum, a constitutional change banning the building of minarets, which has triggered a debate about the possibility of the Federal Court to ignore the will of the people. In the context of those examples, the paper goes on to discuss the different modalities of exclusion of human rights issues from the scope of referenda.
Five different models are described in the context of the Slovenian and Slovakian constitutions, ranging from the least restrictive allowing a referendum on almost any topic besides the essential constitutional guarantees, to the most restrictive excluding any issue within the scope of human rights. In its final chapter the paper discusses the theory of legitimacy of decisions passed in a referendum in general, while also mentioning the issues of a posteriori judicial review and a priori material exclusions.