It EU, it is not legal in every

It
is common knowledge that same-sex marriage is illegal in many countries around
the world. Obergefell v. Hodge only
recently, in June 2015, ruled that same-sex marriage is legal under federal law
in the United States of America, taking the power to decide this on state level
away from the states. (Yoshino, 2015) Article 9 of the Charter of Fundamental
Human Rights of the European Union grants EU citizens the right to marry and
start a family. (European Union, 2000) Despite this piece of legislation signed
in 2000, not every EU citizen can actually marry whomever they want. Although
same-sex marriage was never criminalized by the EU, it is not legal in every EU
member state. Only twenty-three EU member states
legally recognize civil marriage between same-sex partners. (Gerstmann, 2017) This essay will explore this topic and
whether the European Union, according to the treaties and the Charter of
Fundamental Human Rights, should and has the competence to legalize same-sex
marriage in all member states.

 

EU
legislation on equality

The
Charter of Fundamental Human rights has already been introduced in this essay,
yet it is not the only piece of legislation relevant to same-sex marriage
within the EU. The Convention on
Human Rights established a set of rights that the EU is currently not respecting
in relation to same-sex marriage. Article 2 grants EU citizens the ‘right to
life’, and prohibits unlawful violence against all people. This has the effect
LGBTQ+ people protected from violence under EU law. Article 8 established the
‘right to respect for private and family life’, which means that public
authorities may not interfere with private and family life unless it is
according to law and necessary. Article 12 establishes the ‘right to marry’,
and Article 14 the ‘prohibition of discrimination.’ Furthermore, the
equality of all people and the rule of law have been established in Article 9
of the treaty of Lisbon, signed in 2007. It states that “The Union is founded on the values of
respect for human dignity, freedom, democracy, equality, the rule of law and
respect for human rights, including the rights of persons belonging to
minorities.” (European Union, 2007) The lack of action or initiative by anybody
of the EU to start the dialogue on same-sex marriages shows a stark contradiction
with both the Charter, the Convention and the rule of law established under the
treaty of Lisbon. Marriage equality has increasingly been recognised as a
human right by scholars, perhaps it is time an institute as respectable as the
European Union acts accordingly by abiding by its own legislation and following
the example set by the United states. (Yoshino, 2015)

 

 

 

 

Countries that allow a legal union

Although
discrimination against LGBTQ+ citizens is prohibited and therefore punishable
by law within the European Union and within every member state, not all member
states allow same-sex couples to even enter into a legal union. Even if the
member state does allow a legal union of some sorts, these are not in every
country called a ‘marriage’, even if the union grants similar or identical
legal rights as a marriage. Not every legal union is equal to a marriage, other
forms of legal unions include joint household, registered partnership, civil
partnership, legal cohabitation and de facto union, which is a domestic
partnership. These can differ in the legal rights they grant to the couple. Below
one can find a table with all the countries that allow same-sex marriage or a
legal union such as registered partnership. The countries that do not allow any
legal union between same-sex partners are Estonia, Latvia, Poland and Slovakia.
((SIM), 2015)

 

Figure
1 ((SIM), 2015)

Competence

The
European Court of Justice has been requested to address the rights of LGBTQ+
citizens to marry or enter into a legal union, and to rule same-sex marriage as
legal throughout the European Union, as well as their right to start a family,
as is their right according to the charter of fundamental human rights of the
European Union. However, it has been denied every time. The European Court of
Human Rights has ruled that it falls under the competence of the member states
to decide whether same-sex couples have the right to enter a ‘civil marriage’.
It also addressed the issue of a marriage becoming a same-sex marriage when one
of the partners decides to have a sex change, in which case the marriage will
no longer be legally binding. The European Court of Human Rights has stated
that it does not consider this a human rights violation. ((SIM), 2015)
The difficulty with this is while EU law frequently uses the term ‘spouse’ in
legislation, it does not define or specify the term. Since family law is
governed on member state level, this becomes problematic when it comes to
immigration law, especially in “family based” immigration law. This is because
it affects the member states’ definition of family within EU law. LGBTQ+
citizens do not have the same rights throughout the EU and thus this affects
the freedom of workers, which is the right of EU citizens to live and work in
any country within the European Union. (Titshaw, 2016) Therefore same-sex marriage currently
falls under the competence of the member states, because the Court of Justice
seemingly does not want to make a decision on it. Having stated this, even
though same-sex falls under national competence, Article 9 states that “The
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.”
(European Union, 2000) Therefore, national law should still adhere to EU law. National
law in countries where same-sex couples cannot enter into a civil marriage are
violating the human rights given to citizens of the European Union to marry and
start a family. So this is one reason same-sex marriage should become a
priority of the ECJ and there should be discussion on how to change this
inequality.

 

What
is the effect of the inequality?

Besides
the fact that not every citizen of the European Union can marry and start a
family, which is a violation of human rights in itself according to EU law, the
difference in national law between member states has an indirect discriminating
effect on citizens. The term ‘Spouse’, even though it remains undefined by the
European Court of Justice and the European Union itself, plays an important
part in EU legislation as mentioned before, especially in the Family Migration
Directives. Family-based migration is the most common form of migration within
the European Union. Despite this, there is still no standard procedure in place
for LGBTQ+ family immigration cases. Think for example of a lesbian married
couple from outside the European Union moving to Hungary, with one of them
being a EU citizen. Immigration is not a straightforward process, since there
are many requirements to enter the EU, and not every world citizen has the
right to live within the borders of the EU. Since only one of them has an EU passport,
her partner might not be granted a visa for undetermined stay, since same-sex
marriage is not legally recogniseds in Hungary. This is just an example of how
this could and does affect and limit same-sex couples. The situation becomes
even further complicated when the couple has children, whether that be adopted,
from a previous relationship, surrogate or by other means. One or both parents
might not be able to acquire legal custody over the child or children. Koen
Lenaerts, the Vice President of the European Court of Justice, has stated that
the ECJ will “proceed on a case-by-case-basis” when it comes to these immigration
cases and violating the free movement of people, which is one of the core
values of the European Union. (Titshaw, 2016) This basically leaves LGBTQ+ immigrant
to the mercy of the European Court of Justice and the European Court of Human
Rights. Not to mention that it will presumably not be enough, if one thinks
about the influx of immigrants Europe is and has been experiencing since 2015. (Damoc,
2016) This is another human right that is limited by same-sex marriage being a
national competence.

 

Conclusion

EU
legislation gives all citizens of the European Union a set of rights, but the
organisation is not abiding by its own laws when it comes to LGBTQ+ citizens. This
is because the European Court of Justice has ruled that the competence on
same-sex marriage lies with the member states. By doing so and refusing to
address same-sex marriage on many occasions, it has ignored the rights of EU
citizens and granted member the ability to do so as well. The inequality in the
EU affects same-sex couples’ ability to migrate within and from outside into
the European Union and thus affects the freedom of movement of people, which is
one of the EU’s core values. The European Court of Justice is currently
assessing the by this inequality affected cases of immigration on a
“case-by-case basis”, which won’t be enough in view of the recent refugee
crisis. Therefore according to its own legislation and in order to respect the
human rights of its citizens within all member states, the European Union must
take action to make same-sex marriage an EU competence.