On Options of Citizens and Moral Choices of States: Gays and European Federalism

Abstract

Building on the example of gay rights and, specifically, the likely change in the cross-border acceptance of same-sex families and unions in the EU, this paper focuses on the analysis of the growing limitations of the EU Member States' capacity to make legal-political choices grounded in abstract moral considerations limiting the freedom of intimate association within the scope ratione materiae of EU law. It does this by applying to the legal context of EU law of Kreimer’s vision of federalism, Karsts analysis of the freedom of intimate association, and Koppelman’s representation of sexual-orientation discrimination as sex discrimination. The paper demonstrates that EU law currently has all the potential needed to reinvent the notion of prohibited sex discrimination in such a way that will improve the lives of millions of EU citizens.

Keywords: EU law, gay, LGBT, free movement, family, same-sex, marriage, federalism, free movement, equality, non-discrimination, sexual orientation, family, Europe

JEL Classification: K10, K33, K30