Power grab: Top EU court redefines marriage

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Does the Court of Justice of the European Union (CJEU) have the competence to redefine marriage for all EU citizens?

On 5 June, the EU’s highest court has claimed that it does. In Coman and others, the CJEU ruled that the word ‘spouses’ in EU free movement legislation includes couples of the same sex. By overriding national legal definitions of marriage, the CJEU sets a dangerous precedent for the legitimacy of the EU project.

Adina Portaru is a Legal Counsel in Brussels for ADF International, a Vienna-headquartered organisation that advocates for the right of people to freely live out their faith.

The Coman and others case started back in 2010 when Mr Adrian Coman, a Romanian citizen, and Mr Robert Claibourn Hamilton, a US citizen, concluded a same-sex marriage in Belgium.

When Romania, in line with its national law, refused to consider the pair to be a married couple, they sued the government. The couple argued that their right to freedom of movement within the EU had been violated.

In 2016, the Romanian Constitutional Court referred questions of interpretation to the European Court of Justice, asking how the term ‘spouses’ in EU free movement legislation should be interpreted.

These questions boil down to the following: is a host Member State obliged to recognize the legal status of partners who are considered spouses and family members under the legislation of a different EU member state? And must that be done even where it would directly contradict the laws of the host State?

More than just free movement at stake

What seems at first sight to be a case dealing exclusively with free movement legislation is, in fact, something that goes to the very heart of family legislation in EU member states.

First, EU law has been consistent in stating that the core notions of family law – ‘spouses,’ ‘family member,’ and ‘marriage’ – fall within the competence of EU member states. This is well supported by the language of core EU directives on the matter, and consolidated by the CJEU jurisprudence, including Coman.

This makes sense in a region as diverse as Europe with differing legal definitions of these terms. For example, not all EU countries have same-sex civil partnerships, and where it is available, the scope differs, especially regarding adoption and access to medically assisted reproductive.

Currently, six member states (Romania, Bulgaria, Latvia, Lithuania, Poland, and Slovakia) do not have same-sex civil partnerships. Fourteen member states define marriage as the union of one man and one woman, seven of which have enshrined this definition in their constitutions (Bulgaria, Latvia, Lithuania, Poland, Croatia, Hungary, and Slovakia).

Not only is there a divide between the manner in which family members, ties and the definition of marriage are understood nationally, but these topics have also – quite naturally – sparked intense national debates.

The Croatian (1 December 2013), Slovenian (20 December 2015), and Slovak (7 February 2015) referenda on marriage as well as large public demonstrations have shown popular support for defining marriage as the union between one man and one woman. In 2013, over a million campaigners on the streets of Paris rallied for over a year to show their support for marriage.

According to the organisers, La Manif Pour Tous, the movement is experiencing a revival, with tens of thousands of campaigners having gone out in the streets of Paris in October 2016 to demand that presidential candidates for the 2017 election protect the right of a child to a mother and a father.

And in Romania, the Coalition for Family has gathered three million signatures in support of a referendum which seeks to define marriage as the union of one man and one woman in the national Constitution.

It is therefore clear that the topic of marriage and family is the subject of intense debate in Europe. By advancing a uniform understanding of marriage, the CJEU would cause, rather than avoid, significant legal challenges, and suppress the natural democratic discussions in this area.

A new interpretation of the notion ‘spouses’

The redefinition of ‘spouses’ and, consequently, marriage, is clear from the CJEU judgment which states that:

The term ‘spouse’ within the meaning of Directive 2004/38 is gender-neutral and may therefore cover the same-sex spouse of the Union citizen concerned… An obligation to recognise such marriages does not undermine the national identity or pose a threat to the public policy of the member state concerned.

Previous to that, Advocate General Melchior Wathelet stated, on 11 January, in his advisory opinion that:

The definition generally accepted by the member states, the term marriage means a union between persons of the opposite sex’, now seems to me outdated…The legal recognition of same-sex marriage does no more than reflect a general development in society with regard to the question. Statistical investigations confirm it; the authorisation of marriage between persons of the same sex in a referendum in Ireland also serves as an illustration…It is not something associated with a specific culture or history; on the contrary, it corresponds to a universal recognition of the diversity of families.

This interpretation was also advanced by the European Commission at the oral hearings before the CJEU (21 November 2017).

Although the CJEU in Coman and others mentioned that the recognition of same-sex marriage shall be done for the sole purpose of granting the right of residence, it links this to the right to lead a normal family life. Therefore, the legal effects of Coman and others will clearly go beyond free movement legislation and will extend to national protections and definitions of marriage.

Firstly, all member states will be obliged, as a consequence of this ruling, to give legal effect to ‘same-sex marriage’ concluded outside their territory. This will import a new definition of ‘spouses’ to countries which protect marriage only as the union of one man and one woman.

The notion of ‘spouses’ is deeply linked with core institutions and key concepts in family law, civil law and civil procedure. Having two conflicting definitions will cause difficulties for laws regarding marital relations, adoption, blood bonds, employment, taxes, maternity and paternity leave, social benefits, and more.

The words ‘marriage,’ ‘family member,’ ‘husband,’ ‘wife,’ ‘mother,’ ‘father,’ ‘spouse’ appear thousands of times in domestic legislation. All these instances may need to be tweaked, redrafted and redefined as a consequence of having two (possibly opposing) definitions of ‘spouses’ and ‘marriage’ with which member states will have to juggle.

This conflict of norms will effectively amount to the overriding of national Constitutions in States that have chosen to protect marriage as a social institution between a man and a woman at a pan-European level.

By shrinking the space for democratic debate on marriage, and the corresponding national protections, the CJEU also risks triggering a resurgence of anti-EU narratives. Forcing a member state, despite its competence on the matter, to recognise particular relationships in a particular way sends countries and citizens the message that their democratic expression does not matter.

Having two definitions of ‘spouses’ or ‘marriage’ (one established nationally, through democratic voices, including referenda), and one ‘imported’ from other member states, rather than creating harmonisation will create chaos and division.

And this overreach comes with a concrete danger. The EU is already straining under the weight of fractured political lines and countries rightly asserting their sovereignty. This judgment will only add fuel to that fire.

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