Tuesday, 31 July 2012

The race for full marriage

As incredible as it may seem, Ireland may be about to adopt full gay marriage – before the United Kingdom has it.

Both countries already have civil unions, which confer all the rights of heterosexual marriage in everything but name. But the Conservative governments of both countries have come to the conclusion that this is not enough to guarantee equality under the law.

Across the channel, France – which also already has civil unions – is also preparing to make the switch to full marriage. The country’s new Socialist president Francois Hollande promised to enact gay marriage during his campaign. His rival, incumbent president Nicolas Sarkozy, only promised to upgrade the existing ‘PACS’ civil unions, which only confer a handful of the rights of full marriage.

So now the race is on between these ancient foes - who is the more progressive? The government of Ireland is planning to put the issue to a public referendum next year, and polls show that it would likely pass with 73% of Irish people supporting gay marriage. This is incredible considering that the country only adopted civil unions in 2010.

Talking to Irish people about this, there is a sense that enacting full marriage before the UK would be a huge moral victory, a symbolic gesture announcing to the world that Ireland has escaped the yoke of the Catholic Church. It would shatter still-lingering stereotypes of Ireland being a conservative country crippled by religion.

It would also be a bit humiliating for the British to see France, a country which is known to be much less gay-friendly than the UK, enact gay marriage before they do. Both Francois Hollande and David Cameron are busily setting into motion the process to enact gay marriage. But the French presidency is much more powerful than the post of British prime minister. Hollande will have no trouble passing the legislation, while Cameron must get the legislation past rebellious backbench members of his own Conservative Party and a Labour Party eager to defeat him on any issue. So far, introducing the legislation in the British Parliament has been held up by threats of a revolt by hard-line conservatives and the Church of England.

It is quite likely that France will see gay marriage before England does. But then again, France needs it more urgently – given that the existing PACS are missing many of the rights conferred by marriage. In the UK, David Cameron is pushing full gay marriage despite the fact that gay rights campaigners weren’t really asking for it. Once civil unions were passed in the UK the debate largely went away, because the only thing that was missing was the word ‘marriage’. But Cameron clearly sees enacting full marriage as a winning political issue, part of his overall strategy to detoxify the Tory brand and cast away its old-fashioned image. He wants to Tories to be remembered as the party which enacted gay marriage, even if all they did was change the word.

Not to be outdone, Scotland has also entered the game. The Scottish National Party, which governs the semi-independent constituent country, confirmed last week they will bring forward a bill on the issue. If it passes gay marriage would be legal in Scotland, but not in England and Wales. Many commentators in England have been furious about the announcement, saying the only possible purpose of pre-empting the UK-wide law planned by the London government (which would also apply to Scotland) would be to humiliate Westminster and boost the reputation of the Scottish nationalists, who want to secede from the UK.

In Western Europe, gay marriage has suddenly become a coveted cake that every politician seems to want a piece of. Governments of both the left and right are now falling over themselves to enact gay marriage under their watch. With a federal election coming up next year in Germany, chancellor Angela Merkel may decide to spring a gay marriage bill there in the coming months in an effort to boost her plummeting popularity with independent voters.

Marriage for Europe?

Italy is now the only country in Western Europe to not have any form of same-sex union. As you can see from the map on the right, if Ireland, France and the UK all adopt gay marriage it will leave Europe’s entire Atlantic coast as a gay marriage zone. If other European countries with civil unions decide to do the same thing, we could be left with a map that has no ‘middle option’ – only dark blue full gay marriage and dark red bans on gay marriage.

The state-by-state approach to gay marriage is going to be problematic for the European Union in years to come. But as this New York Times article earlier this month pointed out, the situation can’t really be compared to the state-by-state gay marriage situation in the US. American states can only confer limited rights in a marriage. If the marriage isn’t recognised federally then the most important rights – joint filing of taxes, inheritance laws, and immigration - cannot be conferred.

So for instance, if you are American and you want to marry your German partner in New York State, that doesn’t give the German partner the right to live in the United States. The federal immigration department could still deport the spouse, because the marriage isn’t recognised by the US government.

A law passed in 1996 by a Republican congress and signed into law by Bill Clinton, called the ‘Defence of Marriage Act’ (DOMA), specifically forbids the US government to recognise a state same-sex marriage. Until that law is repealed (which would take an act of congress), the US government can’t recognise these state marriages.

In Europe on the other hand, these are sovereign countries which can confer all of the rights of a marriage. The EU, in fact, has no competence over family law and cannot pass legislation in that area. But it gets a bit tricky when it comes to the ‘free movement’ rights guaranteed under EU law. An EU citizen has the right to live and work anywhere in the EU. But countries without gay marriage do not have to recognise such marriages performed in other countries.

So let’s take the example of a Belgian who is living with his Canadian husband of 10 years in Brussels. If he is suddenly transferred to Rome by his company, he would logically want to bring his family. But his Canadian husband has no right to work and live in Italy, and Italy would not recognise their marriage. The New York Times article cites the example of a Finnish and Italian lesbian couple who are co-parents of their children in Finland, but only one of them can legally be their parents when they are in Italy.

This, logically, presents an impediment to freedom of movement. The refusal of these EU countries to recognise marriages from other EU countries has been challenged at the European Court of Justice, but so far the court has not ruled in the challengers’ favour.

It seems inevitable where this is all going though. Western Europe is progressing rapidly toward a situation where all countries will have full gay marriage, while holdouts in the East are passing constitutional amendments banning gay marriage. If free movement really is an inviolable right for EU citizens, then this situation cannot stand.

1 comment:

Anonymous said...

For me personally I don't care whether what the UK gives me is a "civil union" or a "marriage", as long as it gives the same rights. It's just a word, and if if matters so much to some religious people, I say let them have it.