—Airė Keturakienė, assistant professor at Vytautas Magnus University (Kaunas, Lithuania), and Donatas Murauskas, associate professor at Vilnius university (Vilnius, Lithuania)
A Referendum Against the Constitution
On April 9, 2026, the Lithuanian Parliament advanced a resolution to hold an advisory referendum on amending Article 38 of the Constitution. Voters would be asked whether the Constitution should explicitly state that family relations arise only from marriage between a man and a woman, motherhood, and fatherhood. Framed as an appeal to the people, the initiative presents itself as a form of direct democracy. In reality, it raises a more troubling question: whether popular sovereignty may be mobilised against the Constitution itself.
The proposed referendum is directed at undoing constitutional meaning already authoritatively clarified by the Lithuanian Constitutional Court. In its landmark ruling of 28 September 2011, the Court held that the constitutional concept of family, as derived inter alia from Article 38, cannot be reduced to marriage but is defined by the substance of relationships – mutual responsibility between family members, understanding, emotional affection, assistance and similar relations, as well as on the voluntary determination to take on certain rights and responsibilities (para. 15.1 of the ruling). This position was further developed in the ruling of 11 January 2019, where the Court emphasised that, unlike the constitutional concept of marriage, the constitutional notion of family is gender-neutral, and that all families meeting this substantive standard must be protected and defended (para. 32.5 of the ruling).
Most recently, in its ruling of 17 April 2025, the Constitutional Court reaffirmed and consolidated this doctrine, grounded in a systemic interpretation of the provisions of the Constitution and the values enshrined therein, while also taking into account the requirements of international and European Union law. It stressed that the Constitution obliges the legislature to ensure legal recognition and protection of de facto family relationships, grounded in human dignity, equality, and the right to private and family life (in particular, para. 30 of the ruling).
Against this background, the proposed referendum does not merely seek to establish a basis for amending the Constitution. It seeks to reverse an established line of constitutional interpretation and replace a democracy-, equality-, and rights-based understanding of family with a restrictive definition grounded in majoritarian preference.
This blog argues that the proposed referendum exemplifies a misuse of popular sovereignty: it represents an attempt to deploy popular sovereignty to reverse authoritative constitutional interpretation and to pursue a constitutional change incompatible with core values and internal coherence of the Constitution.
Constitutional Safeguards Against the Misuse of Popular Sovereignty
The proposed referendum is yet another step in ongoing developments in Lithuania, related the attempts of the ruling coalition to pursue political goals by ignoring constitutional standards or disregarding mutual commitment to restraint that used to be exercised in a political domain. Recent tensions started with the initiation of unprecedented mass protests after the appointment of an incompetent minister of culture and continued with defective law-making aimed at capturing the national public broadcaster; and these suggest that the referendum initiative may not be an isolated development, but part of a broader trend of contesting institutional checks and balances.
The Lithuanian constitutional doctrine has responses in the face of such developments. It contains safeguards designed by the Constitutional Court precisely to prevent the misuse of popular sovereignty.
First, the Constitutional Court has made it clear that the people are not situated above the Constitution. In its ruling of 11 July 2014, the Court held that the Constitution binds the civic nation itself. While sovereignty belongs to the people, it must be exercised in accordance with the Constitution. The Court explicitly rejected the idea that popular sovereignty permits the adoption, whether by referendum or otherwise, of legal norms that contradict constitutional requirements. According to the Court, such an understanding, would negate the Constitution as the supreme law. Accordingly, the principle of the supremacy of the Constitution entails an imperative not to submit to a referendum any proposed decisions that do not comply with constitutional requirements. Furthermore, the constitutional principles of the rule of law, constitutional supremacy, and responsible governance impose a duty on the Parliament not to call a referendum where the proposed decision, including a proposed constitutional amendment, would be incompatible with the Constitution. A resolution of the Parliament to call or not to call a referendum may itself be subject to constitutional review (in particular, see paras. 4.4.2.2 and 4.4.2.3).
Second, the Constitutional Court has developed a doctrine of substantive limits on constitutional amendment. As emphasised in its rulings of 24 January 2014, 11 July 2014 and 30 July 2020, the Constitution is a coherent and harmonious whole. Accordingly, constitutional amendments may not disrupt the coherence of the provisions of the Constitution or the values enshrined therein.
Moreover, the Constitutional Court has held that the inherent nature of human rights and freedoms, democracy, and the independence of the State are foundational constitutional values forming the basis of the Constitution as a social contract, the common life of the Nation, and the State itself. Consequently, no constitutional amendment may negate provisions that enshrine these fundamental values, as this would amount to a denial of the very essence of the Constitution (see, e.g., ruling of 11 July 2014, para. 5.3).
Taken together, this doctrine establishes a clear constitutional boundary: neither the legislature nor the people may validly initiate or adopt constitutional changes that would dismantle the core values and internal coherence of the Constitution.
Will the Constitutional Safeguards Hold?
However, the existence of constitutional doctrine does not guarantee its effectiveness, nor does it provide sufficient safeguards in light of the dynamics at play. The referendum initiative appears to be driven by political reactions to the Constitutional Court’s jurisprudence on the recognition of de facto family relationships and the legislature’s prolonged failure to regulate family relations of same-sex couples. Political actors advocating for the referendum increasingly frame the issue as a conflict between democratic legitimacy and constitutional adjudication. In parliamentary debates, support for the referendum has been justified by emphasising that the Parliament represents the will of the people, implicitly contrasting it with the authority of “nine Constitutional Court judges.” The extent of public support for embedding such a restrictive definition of family in the Constitution remains uncertain. However, this model of the family is among the key notions on which part of the current majority coalition grounds its agenda..
Such rhetoric is not merely incidental. It reframes constitutional constraints as elitist obstacles and positions the Constitutional Court as an adversary of the people rather than as a guardian of the constitutional order. In doing so, it risks preparing the ground for a broader confrontation with constitutional review itself.
This pattern is familiar from other contexts. Illiberal constitutional practices rarely begin with the formal dismantling of institutions. They begin with their political delegitimisation. Constitutional Courts are not immediately overruled. They are first portrayed as biased or undemocratic.
The potential tensions created by politicians, which place the burden on courts to resolve issues, are yet another example of “hot potatoes” being thrown to the judiciary. When the Constitutional Court addressed a 24-year delay by Parliament in adopting the necessary legislation on civil unions in April 2025, it was politicians from the current governing coalition who called for abolishing the Constitutional Court over its allegedly political judgments.
Although constitutional amendments are subject to substantive limits grounded in the coherence of the constitutional order and its underlying values, these safeguards depend on institutional actors willing to enforce them and on a political culture that respects their legitimacy. The deliberate testing of the institutional framework, particularly of the Constitutional Court, serves as a reminder of the fragility of constitutional systems, which are in urgent need of distributed oversight in the current “survival” mode of constitutional democracies.
If constitutional doctrine is treated as an obstacle to be circumvented rather than a constitutional framework to be respected, its capacity to constrain political action weakens. The danger is not only that unconstitutional proposals are advanced, but that the very authority of the Constitution is gradually eroded.
Conclusion: A Test for Constitutional Democracy
The Lithuanian referendum initiative thus represents more than a dispute over family law or constitutional interpretation. It is a test of whether constitutional democracy can withstand the strategic use of popular sovereignty against its own constitutional foundations.
The Constitutional Court has already articulated the answer in principle: sovereignty belongs to the people, but it is exercised within and not against the Constitution. Substantive limits on constitutional change and the supremacy of constitutional values are not optional constraints, but defining features of the constitutional order.
What is at stake is not only the meaning of Article 38 of Lithuanian Constitution. It is the resilience of the idea that democracy is not simply the rule of the majority, but the rule of law that binds all.
Suggested citation: Airė Keturakienė and Donatas Murauskas, The Misuse of Popular Sovereignty in Lithuania, Int’l J. Const. L. Blog, May 5, 2026, at: htto://www.iconnectblog.com/the-misuse-of-popular-sovereignty-in-lithuania