Thursday, 9 September 2010

Gay marriage conflict brewing in European Parliament

On 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?"

In response, Reding told the MEPs, "it is implicit that if you are allowed to move freely and to reside freely you must also have the rights which are coming from your first residence to your second residence". But, "we have to advance cautiously" to "bring step by step the resistant member states to accepting the general rules".

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".

In the end, the debate seemed to end right back where it started. Reding indicated that the commission agrees that the current situation is problematic, but did not indicate any willingness or urgency to do anything about it. And the voices of MEPs from east and west could not have been more starkly opposite. On one side sat openly gay Western European MEPs in long-term relationships who view their inability to transfer their marriage to another EU member state as not only a violation of their human rights but of the basic EU principle of free movement, a cornerstone of the union. On the other side sat religious conservative Eastern European, Italian and Greek MEPs who view the entire discussion as a silly waste of time and would fight tooth and nail against any effort by Brussels to make them recognize gay marriages performed in other member states.

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.

1 comment:

Eurocentric said...

The split isn't exactly across the bluye and red states in your picture, though it's a close fit. Countries like Ireland would be very wary of letting the EU into the area of family law - after all, there are worries in a section of Irish society about abortion (which I think is probably now in the minority, but it's been a while since we had a referendum on the issue). It was even a minor issue in the Lisbon Treaty debates.

The ECJ is quite an activist court, and it might have to act, though it would have to wait until the legal issue arose in a national court (since natural persons don't have standing automatically in the court). Then the EU law issue would be referred on for ECJ interpretation. There's a bit of a debate on the "repecting national characteristics"-like line in the Treaties now that we have Lisbon - it could, perhaps, be developed in defence of the different visions of marriage at a national level by a creativbe lawyer...