Same-Sex Marriage: The Eu Is Lagging Behind

Alina Tryfonidou, Associate Professor inward European Union Law, School of Law, University of Reading

Last Friday, inward its much-awaited ruling inward Obergefell v. Hodges, the the States Supreme Court held that same-sex couples derive from the the States Constitution the fundamental correct to hook upwardly amongst and, for this reason, invalidated State laws which impose a ban on such marriages. The Supreme Court, also, held that marriages lawfully performed inward i the States State must move fully recognised inward all other the States States. This is, without a doubt, an historical ruling of immense symbolic together with practical importance, since it agency that all LGB the States citizens are at nowadays able to hook upwardly amongst a same-sex partner, together with to move recognised, together amongst the latter, equally a married couplet everywhere inward the US.

Given that the outset province inward the ground that opened registered partnerships to same-sex couples was Denmark, inward 1989, together with that the outset province that opened union to same-sex couples was the Netherlands, inward 2001, i would withdraw maintain expected the European Union to move a pioneer inward matters regarding the legal recognition of same-sex relationships. Nonetheless, the EU’s stance on these matters together with on the protection of the rights of same-sex couples remains disappointingly aloof.

This slice volition focus on same-sex union together with shall seek to examine the EU’s seat towards a) same-sex union inward situations confined inside a unmarried Member State; together with b) the cross-border legal recognition of same-sex marriages (i.e. when European Union citizens who are married to a somebody of the same sexual practice displace to some other Member State).

Can the European Union Require Member States to Open Marriage to Same-Sex Couples?

The answer is elementary together with it is ‘no’, at to the lowest degree equally things stand upwardly at the moment. In its judgment inward Römer, the Court stressed that ‘as European Union police push clit stands at present, legislation on the marital status of persons falls inside the competence of the Member States’. Moreover, the drafters of the EU Charter of Fundamental Rights seemed to part the same view, when inward the Explanations Relating to the Charter of Fundamental Rights, it was pointed out that the Charter Article providing the correct to hook upwardly amongst (Article 9) ‘neither prohibits nor imposes the granting of the status of union to unions betwixt people of the same sex’.

Because matters that autumn inside the ambit of household unit of measurement police push clit are (usually) matters for which in that location is no European consensus together with for which it is believed that each Member State should move left lone to brand its ain choices, household unit of measurement police push clit is an surface area inward which the European Union has no competence to legislate. Thus, it is the Member States that tin give the sack determine inward situations that autumn inside their jurisdiction, who tin give the sack hook upwardly amongst whom, the requirements for divorce, adoption issues, the regulation of assisted reproduction, together with whatsoever other issues falling inside the ambit of household unit of measurement law. The legal recognition of same-sex relationships is no exception to this, and, hence, it is upwardly to each Member State to determine whether it volition allow inward its territory 2 persons of the same sexual practice to marry. This has resulted inward an European Union which is divided betwixt the (mostly northern together with western) Member States which withdraw maintain opened union to same-sex couples,[i] together with the (mostly fundamental together with eastern) Member States which withdraw maintain not,[ii] amongst some Member States having a constitutional ban on opening union to same-sex couples.[iii]

Does the European Union Require Member States to Recognise Same-Sex Marriages Lawfully Performed In Another Member State?

Even when the European Union does non withdraw maintain the competence to brand legislation inward a certainly area, this does non hateful that the Member States withdraw maintain a card blanche when exercising their powers inward that field. This is because Member States must ensure that when they accept activity inward an surface area which falls to move regulated exclusively yesteryear them, they comply amongst their obligations nether European Union law.

The side yesteryear side of import question, therefore, is what happens to married same-sex couples comprised of (at least) i Union citizen, who displace betwixt Member States? If they displace to a Member State which has non opened same-sex union to its ain nationals, do they lose their status equally a married couplet and, amongst it, the automatic European Union police push clit correct to displace together with reside to the host State together equally a couple? Also, i time they are inside that State’s territory, are they non treated equally a married couplet for all legal purposes and, hence, are they refused benefits together with advantages that are only available to married couples? Or does European Union police push clit require Member States which do non offering the alternative of union to same-sex couples inward their ain territory, to, nonetheless, recognise the status of same-sex couples who lawfully contracted their union inward some other Member State? The answer to this query is non solely clear.

The argue behind this uncertainty is that the European Union legislation which makes provision for the rights (including household unit of measurement reunification rights) of mobile Union citizens, uses the gender- together with sexual orientation-neutral term ‘spouse’, without clarifying that this term – at to the lowest degree inward this context – refers to both same-sex together with opposite-sex spouses. This has proved problematic, because it has been read yesteryear some Member States equally a licence to spend upwardly to recognise same-sex marriages contracted inward other Member States.

More specifically, Directive 2004/38, which lays downwards the weather governing the exercise of the correct of Union citizens together with their household unit of measurement members to displace together with reside inward the territory of some other Member State, provides, inward its Article 2(2)(a), that ‘family member’ for the purposes of this Directive means, inter alia, ‘the spouse’, and, thus, Union citizens tin give the sack move accompanied or joined yesteryear their ‘spouse’ inward the host Member State. One would withdraw maintain idea that a union – whether comprised of persons of the same or the reverse sexual practice – lawfully contracted inward a Member State, would move considered valid inward all other Member States. After all, Recital 31 of the Directive, provides that ‘In accordance amongst the prohibition of discrimination contained inward the Charter, Member States should implement this Directive without discrimination betwixt the beneficiaries of this Directive on grounds such equally … sexual orientation’. This, on its own, should suffice for making it clear to the Member States that when implementing the Directive, they must ensure that they do non human activity inward a way which is (directly) discriminatory on the ground of sexual orientation, and, thus, only equally they recognise (all) opposite-sex marriages lawfully performed inward other Member States they must, also, recognise (all) such same-sex marriages.

In whatsoever event, refusing to an LGB Union citizen the correct to move joined or accompanied inward the host Member State yesteryear his or her same-sex husband can, without a doubt, constitute an obstruction to that person’s fundamental correct to displace together with reside inward the territory of some other Member State, which stems from the complimentary displace provisions of the FEU Treaty. The rationale of the European Union legislature – together with the ECJ – for granting household unit of measurement reunification rights to mobile Union citizens, has ever been that the refusal of such rights volition give ascent to a restriction on the exercise of complimentary displace rights (Singh; Carpenter; Metock). It goes without proverb that such a restriction volition emerge, whether the husband of a Union citizen is of the same or the reverse sexual practice together with hence it appears solely arbitrary to process same-sex couples differently from opposite-sex couples. Although the ECJ has not, yet, had the chance to dominion on whether the refusal of the host State to acknowledge inside its territory the same-sex husband of a mobile Union citizen amounts to a breach of the complimentary displace provisions of the Treaty, a illustration is currently pending earlier it (Cocaj), where i of the questions referred is whether ‘registered partnerships’ nether Article 2(2)(b) of Directive 2004/38, include same-sex registered partnerships.

 

Once it is found that the refusal to recognise same-sex marriages contracted inward other Member States amounts to an obstruction to complimentary movement, the onus volition together with so autumn on the recalcitrant Member State to justify its refusal. It seems, nonetheless, that it volition move unable to rely on Earth policy exception, which is i of the Treaty derogations from the complimentary displace provisions, together with this volition move so for 2 reasons. Firstly, since it is engaging inward a block refusal to recognise same-sex marriages contracted elsewhere, the requirement lay downwards inward Article 27 of Directive 2004/38, that the mensurate which limits the exercise of complimentary displace rights is based on the personal acquit of the private concerned, volition non move satisfied. Secondly, national measures tin give the sack move justified nether the Treaty derogations only if they are compatible amongst fundamental human rights protected nether European Union police push clit (ERT) and, equally volition move explained below, a refusal to recognise same-sex marriages contracted inward other Member States seems to sum to a breach of Article 21 of the European Union Charter of Fundamental Rights and, inward particular, the prohibition of discrimination on the ground of sexual orientation, together with of the correct to human dignity.

Influenza A virus subtype H5N1 restriction on the exercise of complimentary displace rights is, also, probable to emerge from the elementary fact that a same-sex married couplet volition lose its status or volition withdraw maintain its status converted into a ‘lesser’ i (namely, registered partnership), something which will, obviously, withdraw maintain of import (negative) implications i time the couplet is admitted into the territory of the host State. Apart from the wound feelings together with uncertainty that such a loss or ‘downgrading’ of status volition cause, it shall, also, give ascent to a substantial bird of (practical) inconvenience which, inward turn, tin give the sack Pb to an obstruction to the exercise of complimentary displace rights, since the couplet – although lawfully married inward some other Member State – volition non move entitled to benefits together with advantages reserved to married couples.[iv] For instance, infirmary visitation rights or pensions, together with tax, social or other advantages, which, nether national law, are only available to married couples, volition non move granted to the spouses, since inward the eyes of the police push clit of the host State, they are non married.

Apart from Article 21 of the European Union Charter of Fundamental Rights (see the analysis below) and/or the complimentary displace provisions of the Treaty, some relief inward this context can, also, move offered via Directive 2000/78, which prohibits discrimination on, inter alia, the ground of sexual orientation, inward the areas of employment, line together with vocational training. In detail – together with applying inward this context the principles established inward case-law involving stagnant Union citizens (Maruko; Römer; Hay) – same-sex spouses who displace to some other Member State where they are ‘downgraded’ to registered partners, tin give the sack rely on the Directive to require the host State to extend to them benefits reserved to opposite-sex spouses, provided that the benefits relate to employment, line or vocational training, together with provided that the host State considers the 2 categories of couples (opposite-sex spouses together with same-sex registered partners) to move inward a comparable province of affairs for the purposes of the claimed benefit. Nonetheless, this is, only, a partial solution to the problem, since it volition non offering whatsoever remedy to same-sex spouses who displace to Member States which do non grant whatsoever legal recognition to same-sex relationships or Member States which do non consider – for the specific do goodness that is claimed or to a greater extent than by together with large – opposite-sex spouses to move inward a comparable province of affairs amongst same-sex registered partners. Furthermore, it volition non offering whatsoever remedy inward situations where the claimed do goodness or wages does non relate to employment, line or vocational training.

The refusal of the host Member State to recognise same-sex marriages contracted inward other Member States of the European Union is, also, inward breach of fundamental (human) rights that are protected nether the Charter and/or equally full general principles of European Union law.

Article 21(1) of the Charter, provides that ‘Any discrimination based on whatsoever ground such equally … sexual orientation shall move prohibited’. Since all Member States automatically recognise (opposite-sex) marriages contracted inward other Member States, a refusal to recognise same-sex marriages, amounts to (direct) discrimination on the ground of sexual orientation. In its Article 51(1), the Charter provides that its provisions are addressed ‘to the Member States only when they are implementing Union law’. Recent ECJ rulings withdraw maintain interpreted this broadly, yesteryear noting that ‘The applicability of European Union police push clit entails applicability of the fundamental rights guaranteed yesteryear the Charter’ (Fransson). Accordingly, it would seem that situations which involve measures that Pb to an obstruction to the exercise of European Union complimentary displace rights tin give the sack autumn inside the ambit of the Charter. Union citizens can, therefore, rely on Article 21 of the Charter inward lodge to require the Member State to which they displace to recognise their same-sex union together with to acknowledge them inside its territory together with process them equally a married couple. Of course, Member States may wishing to endeavour to justify this illustration of differential handling (e.g. on the necessitate to protect the traditional notion of union equally a union betwixt a human being together with a woman), but given that – equally made clear inward the ECHR context – only ‘particularly serious reasons’ tin give the sack justify discrimination on the ground of sexual orientation (Dudgeon v. United Kingdom; Smith & Grady v. United Kingdom; Karner v. Austria), they volition move faced amongst an uphill struggle, and, inward practice, it is unlikely that they volition move able to successfully rely on a justification.

Stripping a same-sex married couplet of its legal status seems to be, also, a breach of the correct to human dignity of the persons comprising it, which is protected nether Article 1 of the Charter together with which is, also, a full general regulation of European Union law.[v] Forming intimate relationships amongst other individuals together with choosing to formalise such relationships is an exercise of personal autonomy, which is an appear of the dignity of every human being. The EU, yesteryear prohibiting discrimination on the ground of sexual orientation, (tacitly) admits the equal worth of all individuals irrespective of their sexual orientation, and, amongst it, the equal moral worth of opposite-sex together with same-sex relationships. When a Member State refuses to give outcome to the choices of individuals equally regards their same-sex relationships together with the legal status attached to them, it treats such relationships differently from opposite-sex relationships together with it treats them equally inferior – together with equally non having the same moral worth – equally the latter. Accordingly, it fails to observe the autonomy together with dignity of the individuals who withdraw maintain formed together with formalised such relationships. The correct to human dignity appears, inward fact, to withdraw maintain formed the backbone of the bulk Opinion inward Obergefell v. Hodges which, taking equally its footing that ‘the correct to personal pick regarding union is inherent inward the concept of private autonomy’ together with that ‘[t]here is dignity inward the bond betwixt 2 men or 2 women who seek to hook upwardly amongst together with inward their autonomy to brand such profound choices’, concluded that the the States Constitution should move read equally granting to same-sex couples the fundamental correct to hook upwardly amongst inward the same damage that this has ever been granted to opposite-sex couples.

Accordingly, it is obvious from the inward a higher house analysis that the refusal of the host Member State to recognise the same-sex marriages of mobile Union citizens, amounts to an unjustified breach of a number of fundamental rights (free displace together with residence rights; non-discrimination on the ground of sexual orientation; human dignity) that these individuals derive from European Union law.

Conclusion

As things stand, it is clear that the European Union cannot require Member States to opened upwardly union to same-sex couples. Nonetheless, a number of European Union police push clit provisions appear to require Member States to recognise same-sex marriages lawfully entered into inward the territory of some other Member State. Accordingly, Union citizens who displace to some other Member State should move allowed to move accompanied or joined in that location yesteryear their same-sex husband and should move treated equally ‘spouses’, i time they are admitted into the territory of the host State. Accordingly, the European Union tin give the sack no longer stand upwardly idle, turning a blind oculus to the violation yesteryear some Member States of the fundamental rights of a segment of the European Union population (i.e. the LGB population). The ECJ (when given the opportunity) together with the European Union legislature, should become far clear that European Union Member States are required yesteryear European Union police push clit to recognise the same-sex marriages of mobile Union citizens, only equally they do inward situations involving Union citizens who are married to an opposite-sex partner.

Further Reading

A. Tryfonidou, ‘EU Free Movement Law together with the Legal Recognition of Same-Sex Relationships: The Case for Mutual Recognition’ (2015) Columbia Journal of European Law (forthcoming)

C. Casonato together with A. Schuster (eds), ‘Rights on the Move: Rainbow Families inward Europe: Proceedings of the Conference:  Trento, 16-17 Oct 2014’ available at http://eprints.biblio.unitn.it/4448/

D. Gallo, L. Paladini together with P. Pustorino (eds), Same-Sex Couples earlier National, Supranational together with International Jurisdictions (Springer, 2014)

R. Wintemute together with M. Andenas (eds), Legal Recognition of Same-Sex Partnerships: Influenza A virus subtype H5N1 Study of National, European together with International Law (Hart, 2001)

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[i]  Kingdom of the Netherlands (2001), Kingdom of Belgium (2003), Kingdom of Spain (2005), Sweden (2009), Portugal (2010), Kingdom of Denmark (2012), French Republic (2013), UK (2014) (apart from Northern Ireland), Grand Duchy of Luxembourg (2015), Republic of Finland (from 2017), Republic of Ireland (popular plebiscite yielded a positive result; awaiting for the police push clit to move passed), Slovenia (proposal for same-sex union currently nether discussion).

[ii]  Austria, Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Germany, Greece, Hungary, Italy, Malta, Latvia, Lithuania, Poland, Romania, Slovakia. Some of these Member States (i.e. Austria, Croatia, Czech Republic, Estonia, Germany, Hungary, Malta), however, offering to same-sex couples the alternative of a registered partnership/cohabitation.

[iii]  Bulgaria, Croatia, Hungary, Latvia, Lithuania, Poland, Slovakia.

[iv]  Influenza A virus subtype H5N1 parallelism tin give the sack move drawn hither amongst ECJ case-law where it was held that the refusal to recognise a surname registered inward some other Member State or inward accordance amongst the practise followed inward some other Member State leads to a substantial bird of inconvenience which, inward its turn, tin give the sack impede the exercise of complimentary displace rights. See, most prominently, Case C-148/02 Garcia Avello ECLI:EU:C:2003:539 together with Case C-353/06 Grunkin together with Paul ECLI:EU:C:2008:559. This parallelism was outset drawn inward G. Biaggioni, ‘On Recognition of Foreign Same-Sex Marriages together with Partnerships’ inward D. Gallo, L. Paladini together with P. Pustorino (eds), Same-Sex Couples earlier National, Supranational together with International Jurisdictions (Springer, 2014), 376-377.

[v] This correct was, also, used yesteryear the Court (together amongst other the correct to observe for private together with household unit of measurement life protected nether Article vii of the Charter together with Directive 2004/83) inward lodge to bound the liberty of national regime to usage diverse practices when seeking to flora the sexual orientation of LGB asylum-seekers – meet A., B, C case (for comments on the illustration meet the slice yesteryear Steve Peers inward this weblog here). 

Barnard & Peers: chapter 13, chapter 20

Photo credit: CNN.com

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