All equal… but some more than the others: The case of homosexual marriage

By Annamária Tóth | 8 April 2012

To quote this document: Annamária Tóth, “All equal… but some more than the others: The case of homosexual marriage”, Nouvelle Europe [en ligne], Sunday 8 April 2012, http://www.nouvelle-europe.eu/node/1472, displayed on 03 February 2023

The European Union is founded on some fundamental values, amongst which we find the prohibition of discrimination based on sexual orientation and the freedom to move and reside freely within the Union. However, when we look at homosexual couples, whose status is defined by the member states, these fundamental rights are often far from being respected…

On 1 April 2001, two lesbian brides and six gay grooms were the first homosexuals of the world to say “I do” officially at the Amsterdam city hall. Two years later, Marion Huibrechts and Christel Verswyvelen were next in Belgium, followed by around 2500 couples in the next twenty-four months. In 2005, Spain was the first country to introduce a form of homosexual marriage that was completely equal to its heterosexual counterpart: indeed, in this country, where the Catholic Church and conservative parties have long opposed gay marriage, a very simple step was taken: it was only considered necessary to specify that the term 'marriage' applies equally to two persons of the same and of the opposite sex. Sweden, a country that legalised homosexual marriage in 2009, is the only country where the Lutheran Church has the obligation to accept marriage between homosexuals. Finally, the Portuguese Parliament voted in favour of homosexual marriage in 2010.

“Sexual apartheid”

While these five European countries accord equal rights and obligations to homosexuals as far as marriage is concerned, they are the exception. Even in countries with a so-called registered partnership (or civilpartnership in the United Kingdom), inequalities persist. For example, Austria introduced such a partnership in 2010. Even though it allows same-sex couples to declare their union officially and gives them the right to several rights and social benefits, the Rechtskomitee Lambda (RKL), an Austrian organisation for the rights of LGBT people, still finds 59 differences to heterosexual marriage. Moreover, registered partnership remains, as in other countries such as Germany, Hungary, or the UK, limited to homosexual couples. This is why the Austrian Constitutional Court refused the application of a heterosexual couple, Helga Ratzenböck and Martin Seydl, to be registered as partners. The couple then decided to go to the European Court of Human Rights (ECHR) with the support of the RKL. In this case, the RKL talks about “sexual segregation into a homosexual ghetto (registered partnership) on the one hand and a heterosexual ghetto (civil marriage) on the other”. The British “Equal Love" campaign also supports four homosexual couples wanting to get married and two heterosexual couples wishing to be registered in a civil partnership. They applied to the ECHR on 2 February 2011.

EU law: prohibition of discrimination based on sexual orientation

Ever since the introduction of the Lisbon Treaty and the entry into force of the Charter of Fundamental Rights, the prohibition of discrimination based on sexual orientation has taken legal effect as a fundamental principle of EU law. Indeed, as the European Commission on Sexual Orientation Law (ECSOL) explains, Article 2 of the Treaty on European Union and Article 21 of the Charter are at the heart of this principle. The ECSOL adds that the EU now has a “pro-active approach” as far as the fight against discrimination based on sexual orientation is concerned.

For instance, in the judgement Römer v Freie und Hansestadt Hamburg, the European Court of Justice (ECJ) deals with the question of the inequality between (heterosexual) marriage and (homosexual) civil union in Germany. The Court rules that homosexual couples “must have access to all the employment benefits for married couples”. If a member state (as for instance Germany, Austria, or the UK), allows for a form of registered partnership equal to civil marriage, the exclusion of partners from social benefits constitutes direct discrimination. For the lawyer Helmut Graupner, President of the RKL and Mr. Römer's legal representative, this judgement is a “groundbreaking case for the whole of Europe”: “Even if a [member state] prefers segregation, excludes same-sex couples from marriage and refers them to a separate marriage-like institution, it nevertheless has to grant same-sex couples access to all the employment benefits married couples enjoy; if the law separates it at least has to grant the same rights and obligations.”

From diverging definitions of partnerships…

All in all, then, national legal situations differ in significant ways. Looking at the different provisions on the forms of unions allows to shed light on this situation. There are three kinds of partnerships between two persons: marriage, registered (or civil) partnership (which allows for an official declaration of the union without actual marriage) and de facto unions (the fact of “liv[ing] together or prov[ing] in some other way that you are in a long-term relationship”). In all cases, the definition of these concepts can vary from country to country as far as the rights and obligations of the persons and even the conditions for entering such a union are concerned. As already mentioned, five Member States of the EU authorise homosexual marriage but some countries give a substitute to marriage that is equal or almost equal in the form of registered partnership. However, the registered partnership of other countries, such as that of France, Ireland, or the Czech Republic, guarantees but an inferior substitute. Finally, there are countries without any legal provision recognising same-sex unions, such as Italy, Poland, or Slovakia. Bulgaria, Romania and Estonia even refuse to recognise any form of same-sex partnership established abroad. In other words, marriage is the exception rather than the rule…

… to the difficult recognition of the liberty to move freely

This diverse situation gets even more complicated when it comes to recognising unions of one Member State to the next as citizens are exercising their right to free movement, one of fundamental freedoms of the EU and thus another principle protected by EU law. One of the main documents ensuring this liberty is Directive 38/2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the member states. Every citizen has the right to move and reside freely in any member state of the EU, even if this liberty is subject to some limitations. They have the right to be accompanied by their family members, an element which can pose problems to same-sex couples.

This is why the Intergroup on LGBT Rights of the European Parliament defines the free movement for LGBT persons as one of its priorities: with the implementation of the Stockholm Programme, “a roadmap for European Union (EU) work in the area of justice, freedom and security for the period 2010-14”,protecting this fundamental right has gained particular importance. However, as MEP Adina-Ioana Vălean explains about her report on the “EU Citizenship Report 2010: Dismantling the obstacles to EU citizens’ rights”: “My report makes clear what Parliament has known for over four years now: same-sex couples face serious obstacles to their free movement, which is a pillar of the European Union. If we are serious about the European project, the Commission needs to address this situation, as well as other obstacles faced by the citizens when exercising their rights, such as the portability of social benefits, recognition of diplomas and inheritance tax.”

It is up to the Member States to decide

In other words, there is a theoretical obligation to respect the principle of equal treatment, while the recognition of (same-sex) unions remains in the remit of the member states in practice. This means that certain same-sex couples cannot exercise their freedom to move, as their unions are not recognised in the same way in all member states. Some countries consider registered partnership as equal to marriage, which means that the citizens have the same rights in the field of immigration: the registered partner can accompany their spouses when they move to the member state in question.

By contrast, countries which do not recognise any form of same-sex unions will most often recognise the marriage concluded in one of the five Member States as defacto unions. The marriage thus becomes void as it is the law of the Member State of destination that applies. Despite the obligation to facilitate the entry and residence of same-sex couples, the spouse can lose their right to follow their partner because the union is not recognised. The report “Homophobia and Discrimination on Grounds of Sexual Orientation in the EU Member States: Part I - Legal Analysis” of the Fundamental Rights Agency (FRA) argues that the host member state should not be able to re-evaluate the validity of a union established in the member state of origin in order for fundamental rights such as the freedom of movement to be respected.

Conclusion

To come back to MEP Adina-Ioana Vălean's report: if the Union takes the protection of fundamental rights such as equal treatment and the freedom to move seriously, it has to reinforce its action in these fields, which it has already done repeatedly, as in the “Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation” or Anti-discrimination directive (COM (2008) 426 final), which has been blocked in the Council without being examined formally since 2008. This is exactly the important point: without the willingness of the member states to change, for example, the system of recognition of partnerships, the protection of these fundamental rights will not advance.

Further readings

On the internet

Picture credits: "European Gay Flag" on Wikimedia Commons, "I do / We did" on Flickr, displayed on 3 April 2012.