Associated Press reported on 29 November 2016 that Romania’s Constitutional Court had announced it would consult with the European Court of Justice (CJEU) regarding the case of a same-sex couple wanting the marriage they contracted in the USA to be legally recognised in Romania. It will be heard by the CJEU on 30 March 2017. It will examine free movement rights as a fundamental right and the recognition of a husband irrespective of gender. This brings the issue of same-sex marriage once more to the doors of the CJEU. One of these days, I predict, it will hold that it is the EU’s business to regulate marriage, regardless of the sex of the couple involved.
Lesbian and gay relationships have suffered from a lack of legal and policy recognition over many years. This includes the European Union (EU). In this article we discuss two aspects: lack of legal recognition of the relationship itself and the requisite legal rights attached to similar-looking heterosexual married relationships. For example, the right to a survivor partner’s pension1Case C-267/06 Tadao Maduko v Versorgungsanstalt der deutschen Bühnen, 2009 Common Market Law Review 46(2), 723-746 or access to inheritable rental accommodation. After decriminalisation of same-sex sexual acts in all EU states, these kinds of benefits deriving from a legally recognised relationship, be it civil union or marriage, are usually the first types of rights to be awarded by courts or legislators to same-sex couples whose relationships are similar to, or are in fact, a marriage. Over the past few years, there has been a marked increase of legal jurisdictions recognising in law and society different types of stable same-sex relationships. Most progress has been made in the recognition of same-sex civil unions, PACS, registered partnerships or the like, but not same-sex marriage. A full survey is outside the scope of this article, but the importance for present purposes is in the large number of different types of relationships recognised by states as being marriage-like with all, most, or many of the rights of marriage.
Some form of registered partnership scheme exists in Austria, Belgium, Croatia, Cyprus, the Czech Republic, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Liechtenstein, Luxembourg, Malta, the Netherlands, Slovenia, and the UK. In contrast, only 12 European states legally recognise same-sex marriages: Belgium, Denmark, Finland, France, Iceland, Ireland, Luxembourg, the Netherlands, Portugal, Spain, Sweden, and the UK. In addition, seven member states (Bulgaria, Croatia, Hungary, Latvia, Lithuania, Poland, and Slovakia) have amended their constitutions in order to clearly state that marriage is a union between a man and a woman only.
That so many states, post 2000 or post recent accessions, have elevated the same-sex relationship from criminalisation to status (legal) recognition with rights emanating from that relationship, sends a clear message that, with the help of laws outlawing sexual orientation discrimination at EU level (of course approved by each Member State), most member states are expanding the types of legally recognised responsible relationships. The ideology of creating stable family life and marriage is couched in the language (and values) of equality, dignity, right to development of personality, and privacy. The concepts of family and marriage are conflated. Or, put in another way, marriage is the pre-cursor to family life. That, according to orthodoxy, is unachievable for same-sex couples, and therefore remains one of the main areas of contention.
At EU level, the same values described above are all aspects of the case law of the CJEU, the acquis communautaire2Article 13 Treaty of Amsterdam; Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ L 303, 2.12.2000; Directive 2004/38/EC of the European Parliament (EP) and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, OJ L 158, 30.4.2004, 77; Commission proposal for a Council directive implementing the principle of equality regardless of religion or belief, disability, age or sexual orientation, extending the scope of Directive 2000/43/EC to all other forms of discrimination (COM(2008) 0426). Case C 413/99, Baumbast and R v. Secretary of State for the Home Department  3 CMLR. See Jones 2004, 2008, 2009a & b, EU Treaties, the fundamental values of international obligations and many national constitutions as they spring from common constitutional traditions. They are also part of the general principles of EU law and fundamental rights of the EU3Tridimas 2007. Article 10 EU Treaty, alongside secondary legislation banning discrimination on the basis of sexual orientation in the workplace within the scope of EU competence, has helped in the process of ending discrimination against lesbian and gay men both in terms of their status as legal subjects of law as well as rights bearers. Those common EU values are codified in the EU Charter. The same articles can be used in cases both domestically and before the European courts. For example, Article 20 EU Charter ensures that everyone is equal before the law, and Article 21 which provides that the European Union prohibits “any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation”. These are important provisions when read in light of the other articles, as they aid in winning cases on the basis of substantive equality arguments before national courts and the CJEU. Indeed, the EU Charter can aid in the process of purposive interpretation that the CJEU is famous for. Thus whilst the “early” decisions did not recognise sexual orientation discrimination, denying travel concessions for a same-sex partner in Grant v. South-West Trains Ltd. in 19984Case C-249/96 Grant v. South-West Trains Ltd  ECR I-621, and denying equal status to a same-sex partnership registered in Sweden in D and Kingdom of Sweden v. Council in 20015Case C-122/99 P and C-125/99 P D and Kingdom of Sweden v. Council  ECR I-4315, the position of the CJEU has shifted significantly since the enactment of Article 13 EU Treaty. It provides the Treaty base for directives outlawing, inter alia, sexual orientation discrimination in the workplace. Thus in 2004 in KB6Case C-117/01 K.B. v National Health Service Pensions Agency and Secretary of State for Health. 2004. ECR I-541 Advocate-General Ruiz-Colomer at paragraph 74 concluded “the ‘capacity to marry’ was a ‘necessary precondition’ for receiving the survivor’s pension and that direct discrimination flows from this (indirect) source”7Bell 2004. In 2008 the CJEU decided in Maruko that the German same-sex registered partnership scheme, a separate regime to marriage but with conditions that had over time been gradually made equivalent to those applicable to marriage – so much so in fact, that, “[i]n view of the harmonisation between marriage and life partnerships… places persons of the same sex in a situation comparable to that of spouses” (para 69). It is this comparable situation which, it is argued, will lead the CJEU to hold that separate but equal is no defence to discriminating against same-sex couples. That has been the lesson from several US states where same-sex marriage is now lawful8See Oberfell v Hodges 576 US 2015. There is, however, a question mark over whether the CJEU will be competent to decide the issue of who may marry who, as this is within the purview of the member states.
EU charter and a mandate for marriage
With the ratification of the Lisbon Treaty in December 2009, the EU Charter became a binding document with the same legal value as the Treaties. Unlike the Treaties, however, there are limitations to its scope. For example, it is addressed to the EU and the member states “only when they are implementing EU law”. In addition, Article 6(1) states that the EU gains no new competencies, nor does it extend the application of EU law. Perhaps the most important limitation for present purposes is the effect of Article 6(3). Article 6(3) makes clear that where the EU Charter rights correspond to those guaranteed by the ECHR, the rights shall have the same meaning as under the Convention, although EU law may provide “more extensive protection”. Any extended protection may prove difficult to accomplish in fact, however, as ECHR jurisprudence is part of the general principles of the EU9Article 6(3) TEU. Thus it is in the area where the texts of the Convention and the EU Charter diverge that the CJEU may retain some of its supremacy of interpretation, including Article 9 EU Charter.
The explanatory guidance of the original Charter states that Article 9 is based on Article 12 ECHR. However, the wording of the Article has been modernised. Article 9 EU Charter states “[t]he right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights”10Peers 2004, chapter 6. Official Journal (OJ) C 364, 18.12.2000, 1. Article 12 ECHR, on the other hand, states “[m]en and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right”. The significance of the reference to “men and women” being deleted from Article 9 is important as it means the case law of the ECtHR need not necessarily be followed. This is particularly noteworthy as the case law in relation to Article 12 on marriage has always retained its heteronormative format, whereas cases using Articles 8, 12, and 14 ECHR have led to transsexuals being able to exercise the right to marry the person of their choice, even if of the same sex as their birth sex11Rees v. UK Series A, No 106 (1986) 9 EHRR; Cossey v. UK Series A, No 184 (1990) 13 EHRR; Sheffield and Horsham v. UK (1997) 27 EHRR 163; Goodwin v UK and I v. UK (2002) 35 EHRR 18; Karner v. Austria (2004) 38 EHRR 24.
The explanatory notes go on to state that the modernisation is to cover cases in which national legislation recognises arrangements other than marriage for founding a family. This Article neither prohibits nor imposes the granting of the status of marriage to unions between people of the same sex. The right is thus similar to that afforded by the ECHR, but its scope may be wider when national legislation so provides12OJ C 303, 1. Explanatory Notes.
Indeed, the ECtHR even acknowledged this fact in its 2002 decision of Goodwin13Goodwin v UK and I v. UK. 2002. 35 EHRR 18; see also Karner v. Austria. 2004. 38 EHRR 24, stating
The Court would also note that Article 9 of the recently adopted Charter of Fundamental Rights of the European Union departs, no doubt deliberately, from the wording of Article 12 of the Convention in removing the reference to men and women. (…) [emphasis added]
The exercise of the right to marry gives rise to social, personal and legal consequences. It is subject to the national laws of the Contracting States but the limitations thereby introduced must not restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired. (…)14Paragraphs 100-101.
What is meant by “no doubt deliberately” is still questionable. National laws can diverge on this point. Yet a 21st century bill of rights for the EU can surely be more inclusive of same-sex couples, eventually, permitting them to marry the person of their choice. Article 9 EU Charter provides an EU framework for this type of purposive reading, in line with the general principle of EU law in that states when acting in their field of competence must, nonetheless, adhere to equality as a fundamental right of EU law.
States are moving towards this position at their own speed. The EU Charter, human rights, general principles of EU law as well as the advent of sexual orientation discrimination legislation at EU level, all ensure that there is a symbiotic relationship between national and EU level enactments in the field of same-sex marriage. What is happening at the moment is the bedding in of laws prohibiting sexual orientation in the workplace, the contracting of EU citizenship (due to asylum and immigration fears) as well as the call for full equality (status recognition). The tensions between all of these aspects are real but different in the member states. In terms of same-sex relationships, typically countries with a short history of de-criminalisation of homosexual sexual relationships will not be at the vanguard of permitting relationship recognition for lesbians and gays, let alone for other same-sex relationships. However, in countries with a longer history of laws not just prohibiting sexual orientation discrimination, but then bestowing rights, calls for relationship recognition may well succeed. If Romania, which decriminalised homosexuality in 2002, is ready at the highest level to ask the marriage question of the CJEU, I am hopeful for the European Court to get to opening marriage regardless of sex.
|↑1||Case C-267/06 Tadao Maduko v Versorgungsanstalt der deutschen Bühnen, 2009 Common Market Law Review 46(2), 723-746|
|↑2||Article 13 Treaty of Amsterdam; Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ L 303, 2.12.2000; Directive 2004/38/EC of the European Parliament (EP) and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, OJ L 158, 30.4.2004, 77; Commission proposal for a Council directive implementing the principle of equality regardless of religion or belief, disability, age or sexual orientation, extending the scope of Directive 2000/43/EC to all other forms of discrimination (COM(2008) 0426). Case C 413/99, Baumbast and R v. Secretary of State for the Home Department  3 CMLR. See Jones 2004, 2008, 2009a & b|
|↑4||Case C-249/96 Grant v. South-West Trains Ltd  ECR I-621|
|↑5||Case C-122/99 P and C-125/99 P D and Kingdom of Sweden v. Council  ECR I-4315|
|↑6||Case C-117/01 K.B. v National Health Service Pensions Agency and Secretary of State for Health. 2004. ECR I-541|
|↑8||See Oberfell v Hodges 576 US 2015|
|↑9||Article 6(3) TEU|
|↑10||Peers 2004, chapter 6. Official Journal (OJ) C 364, 18.12.2000, 1|
|↑11||Rees v. UK Series A, No 106 (1986) 9 EHRR; Cossey v. UK Series A, No 184 (1990) 13 EHRR; Sheffield and Horsham v. UK (1997) 27 EHRR 163; Goodwin v UK and I v. UK (2002) 35 EHRR 18; Karner v. Austria (2004) 38 EHRR 24|
|↑12||OJ C 303, 1. Explanatory Notes|
|↑13||Goodwin v UK and I v. UK. 2002. 35 EHRR 18; see also Karner v. Austria. 2004. 38 EHRR 24|