By Dr Jule Mulder, Lecturer in Law (University of Bristol Law School).
Dr Jule Mulder’s article ‘Dignity or Discrimination: What paves the road towards equal recognition of same-sex couples in Europe?’ has been published in the Journal of Social Welfare and Family Law. The article explores whether the principle of dignity can help advance the Court of Justice of the European Union’s (CJEU) approach towards same-sex couples’ rights within the EU non-discrimination law framework, considering dignity-based arguments in a comparative perspective.
The European courts’ approach, mostly focusing on the concept of direct discrimination, seems insufficient to ensure the equal treatment of same-sex couples. The comparative experience, successfully invoking the dignity-principle to advance same-sex couples’ rights, challenges us to review the EU non-discrimination law and invites us to reconsider the concept of dignity and its value to foster substantive equality and equal treatment within the EU legal framework. Accordingly, recognising the limited reach of the CJEU current approach that focuses on direct sexuality discrimination only and adheres to the comparator paradigm, the article analyses possibilities to challenge de facto discrimination within the EU legal framework going beyond the concept of direct discrimination. In doing so, the article evaluates the potential of the dignity-centred approach within the context of EU equality law. Hence, the article evaluates whether the CJEU case-law’ limited substantive reach could be remedied by a more detailed engagement with the concept of dignity to provide substantive meaning to the analysis. Ultimately rejecting the usefulness of dignity, the article proposes that a more consistent application of the concept of indirect discrimination could push courts towards legal recognition of rights of same-sex couples.
Over the last two decades, the rights of homosexuals and other sexual minorities have significantly improved in North America, Western Europe and parts of Africa, South America and Asia. One strand of that development includes the increased legal recognition of same-sex partnerships. While Denmark was the first country to introduce a same-sex registered partnership in 1989, from the mid-90s the development picked up speed and same-sex partnerships were introduced across many Member States of the European Union (EU) and beyond. Progressively, nation States also opened marriage to same-sex couples. The Netherlands were first in 2000, and Germany, where parliament voted in favour of such a legal change in June 2017, provides one of the most recent examples. Throughout this development, two principal institutions that furthered equal legal recognition can be identified: the courts and the legislators.
Judicial approaches in Western Europe: Focus on non-discrimination
Within Western European Member States, the legal recognition of same-sex partnerships and subsequent introduction of same-sex marriage was predominantly the result of national political processes with same-sex civil unions and marriage acts eventually being passed by parliament or supported by popular referendum. The contribution of the European Courts has been limited. While the CJEU in Maruko (C-267/06 EU:C:2008:179), Römer (C-147/08 EU:C:2011:286) and Hay (C-267/12 EU:C:2013:823) further advanced the rights to matrimonial benefits of partners in a same-sex civil union, it did so with a sole focus on the concept of direct discrimination. Same-sex couples can thus only challenge discrimination if they are in a ‘sufficiently similar’ situation to opposite-sex married couples. This will usually only be the case once the Member State has introduced some sort of civil union, and very much depend on the entitlements in question. Similarly, the European Court of Human Rights (ECtHR) in Karner (2003, App. No. 40016/98) and subsequent case-law predominantly challenged national practices that differentiate between unmarried same-sex and opposite-sex couples in the same situation. As recognised in Vallianatos (2013, App. No. 29381/09 and 32684/09) this may mean that same-sex couples have the right to be included if a new non-marital civil status is introduced. However, Hämäläinen (2014, App. no. 37359/09) confirms that there is no self-standing right to same-sex marriage under the European Convention of Human Rights (ECHR).
Within the European context, the courts’ contribution to further the legal recognition of same-sex couples thus seems limited compared to the political and legislative processes on national level. The ECtHR’s decision in Oliari (2015, App. nos. 18766/11 and 36030/11) is a notable exception here. While the court confirmed its previous case-law on Article 12 ECHR and the right to marry, it did consider Italy in breach of the ECHR and tasked it to introduce a same-sex civil union to reflect social reality. However, it did so without recourse to Article 14 ECHR (non-discrimination). Instead it focused on the meaning of respect for family life in Article 8 ECHR and the discrepancy between social reality and the law. Italy did not provide a meaningful civil union for same-sex couples. This stood in sharp contradiction with the social reality. Same-sex couples who lived in committed relationships only had the symbolic option to register as such in some of the municipalities and/or could enter into cohabitation agreements. Simultaneously, the Italian Constitutional Court had repeatedly asked the legislator to introduce some civil union and the Italian government could not justify their inactivity. Given these special circumstances, Italy had overstepped its margin of appreciation. Accordingly, the ECtHR was able to identify substantive rights to legal recognition by focusing on respect for family life, which surely is underpinned by the principle of dignity (Ragone & Volpe, 2016). The decision may not necessarily imply a general duty to legally recognise same-sex couples.
National (constitutional) courts’ responses have not been more promising either, although with some notable exceptions. For example, the Austrian Constitutional Court recently held that it was contrary to the constitutional equality principle to refuse same-sex couples access to marriage (04.12.2017, G 258-259/2017-9). However, this case seems to be an exception rather than the norm. The general picture thus remains that of rather impotent courts unable or unwilling to push for equal legal recognition of same-sex couples by using or going beyond the current non-discrimination law framework. Whether same-sex relationships are legally recognised, and to what extent, has thus mainly been controlled by the national political process and the legislator.
Judicial approaches elsewhere: Dignity-grounded reasoning
Outside the European context, the United States (US) achieved nationwide marriage equality through the courts. Of course, this development was not completely independent from state legislators. Prior to the US Supreme Court’s judgment in Obergefell v. Hodges ( 135 S. Ct. 2584, 2619) several federal states had already introduced some form of civil union and/or same-sex marriage via legislative acts. However, even on state level, constitutional courts were heavily involved, with the Supreme Court of Hawaii in Baehr v Lewin ( 74 Haw. 530, 597, 852 P.2d 44, 74) being the first US court that challenged the exclusion of same-sex couples form marriage under their state’s constitution (Siegel, 2017, forthcoming). Similar developments can be seen in Canada. The Ontario’s Constitutional Court in Halpern v Canada ( O.J. No. 2268), followed by other states’ constitutional courts, declared the exclusion of same-sex couples from marriage contrary to the Charter of Rights and Freedoms, before same-sex marriage was introduced on the federal level in 2005. The South African Constitutional Court was also highly instrumental in achieving marriage equality in Minister of Home Affairs v Fourie ( (1) SA 524). The concept of dignity ranks highly within these judgments. Dignity thus seems useful to ensure equal legal recognition of same-sex couples, alongside the right to equal treatment, equal protection and non-discrimination as it helps determining the substance and reach of non-discrimination and equal treatment.
Dignity or non-discrimination?
The relationship between dignity and non-discrimination within the context of legal recognition of same-sex partners is interesting for two reasons.
Free movement perspective
Firstly, like the US situation before the Obergefell judgment, the EU currently witnesses a fragmented recognition of same-sex marriage. Some Member States have introduced same-sex marriage, others only recognise some sort of same-sex civil union distinguished from marriage, and some Member States do not legally recognise any same-sex partnership or even protect the traditional understanding of marriage within their constitutions. This means that same-sex couples may be stripped of their matrimonial status once they use their free movement rights and move to a Member State that does not recognise same-sex marriage and/or civil union. This can mean a loss of matrimonial benefits as well as family unification rights, and obviously creates an obstacle to the free movement rights of same-sex couples (Tryfonidou, 2015). It is thus highly debated whether civil statuses of same-sex couples should be mutually recognised in all Member States and whether same-sex married partners fall within the scope of the term ‘spouse’ under Article 2(2)(a) of the Citizenships Directive 2004/38/EC (OJ  L158/77) (Bell & Selanec, 2016; Bell, 2004; Bełavusaŭ, 2017; Bełavusaŭ & Kochenov, 2016; Elman, 2000; Guild, Peers, & Tomkin, 2014, pp. 33-43; Guth, 2011; Titshaw, 2016a; Titshaw, 2016b; Vaigė, 2012; Weiss, 2007; van den Brink, 2016; Toner, 2004). Whether the term ‘spouse’ under the Directive includes partners in a same-sex marriage is also subject of a preliminary reference to the CJEU currently pending (Coman and Other, C-673/16, Advocate General Wathelet’s opinion was published on 11 January 2018). The scope of non-discrimination law and the concepts determining the meaning and scope of substantive equality can potentially be decisive to ascertain the duties of Member States to recognise the civil statuses of EU citizens foreign to the law of the Member State. This is particularly true if the CJEU recognises the obstacle to free movement and subsequently considers potential derogations or justifications, as they must comply with Union law, including the general principle of non-discrimination and Article 20 and 21 of the EU Charter of Fundamental Rights.
Evolving judicial approaches
Secondly, in comparative studies dignity and liberty are often identified as key concepts to explain differences of Continental European and North American legal culture (Eberle, 2002; Rao, 2008). Non-discrimination law is then often viewed as an expression of liberty and thus seen as a fundamental value of North American legal culture, while dignity predominantly informs Continental European Human Rights discourses (Whitman, 2004) including issues relating to equality, non-discrimination and discriminatory harassment (Friedman & Whitman, 2003; Hébert, 2013). However, recent case-law on the right to legal recognition of same-sex relationships questions such clear US-Continental Europe divide, separating non-discrimination and dignity. While North American Courts (among others) embraced the concept of dignity to further the rights of same-sex couples, European continental courts did not use the concept in the same way. Instead, the equality principle and discrimination law, seem to dominate the field. A recent example of that is the Austrian Constitutional Court’s decision that § 44 Austrian Civil Code was unconstitutional, because it made a distinction between opposite-sex and same-sex couples regarding the access to marriage. The court held that such a distinction was contrary to the equality principle, even if same-sex couples had access to a civil union that mostly provided for the same rights and obligations than marriage. While the judgment did refer to the effect of the distinction (i.e. that it suggested that same-sex couples are not equal to opposite-sex couples) it achieved this without reference to the dignity principle (04.12.2017, G 258-259/2017-9).
Exploring the overlaps and distinguishing their functions
The question is then whether the use of dignity to determine the scope of substantive equality can be helpful within the European context and for the interpretation of the existing non-discrimination law framework. The article rejects this proposition. Dignity is not suitable because it is both too wide and to narrow to ensure certainty and substantive protection within EU non-discrimination law. Essentially, the article argues that the concepts of dignity and non-discrimination law address two potentially overlapping regulatory fields. While the concept of dignity protects a minimum standard and can provide a floor of rights, non-discrimination law fosters equality by imposing an absolute procedural standard. The two concepts should thus not be conflated. The article develops these insights in full details, and can now be read in (2018) 40(1) Journal of Social Welfare and Family Law 129-144 (https://www.tandfonline.com/doi/full/10.1080/09649069.2017.1414430).
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