Same-sex Marriage Same-sex Civil Unions Issue under political consideration Unrecognized Constitutional ban on gay marriageOn Tuesday night, members of the European Parliament meeting in Strasbourg held a debate with Justice Commissioner Viviane Reding seeking an answer to a complicated but inevitable question: Now that a majority (16 out of 27) of EU member states have some form of gay marriage, how are free movement rules going to work if those married couples wish to move to one of the 11 member states that do not have gay marriage?
As I wrote earlier this summer, now that Ireland has become the latest country to adopt gay civil unions, a clear pattern is emerging of a two-speed Europe when it comes to gay rights. In Western Europe, every country except Italy has now adopted some form of gay marriage. While in Eastern Europe, nine countries have adopted constitutional amendments banning gay marriage. It is a geographic divide reminiscent of the situation in the United States, where states on the East and West coasts have adopted gay marriage while states in the center and South have adopted constitutional bans. It would seem both the EU and the US are soon going to have to grapple with the challenge of establishing how a marriage can be valid in one state and invalid in another.
During the debate Tuesday night several MEPs spoke about their personal experience of not having ‘freedom of movement’ within the EU because of their sexual orientation. Dutch MEP Cornelis de Jong said he has been married for many years in Holland, "but if we go to Poland we are no longer a legally recognized couple. When we use our freedom to move within the EU we lose a series of rights". British MEP Michael Cashman described the difficulties he and his husband could experience while travelling. "If I would have an accident whilst on holiday in Italy, my partner would not even be given the basic right of deciding whether in such a case I should be on a life support machine or not. Rights acquired in one country should be respected in another."
The idea of basic EU principles not being followed in this area was a theme of frustration among several MEPs. Dutch MEP Sophia In't Veld told Reding, "at the very least what we should do in the EU is apply the principle of mutual recognition. We do it for jam, and wine, and beer, why don't we do it for marriage and for relationships?"
However Polish MEP Konrad Szymansky, a member of David Cameron’s European Conservatives and Reformists group, fired back at the demands. “Some countries do not recognize gay couples, and they have the right not to,” he insisted. “If the State does not recognize it for anyone it is not discriminating and then this debate is a waste of time".
Clearly, there is an inevitable conflict brewing here that will likely only be settled by the European Court of Justice. But in the mean time the questions being asked on this issue here in Europe have particular relevance for the United States. Is it possible to have a union of states with different definitions of marriage? In the end, it will likely be up to courts on either side of the Atlantic to decide the answer to that question.