Same-Sex Spouses Lost in Translation? How to Interpret 'Spouse' in the E.U. Family Migration Directives

68 Pages Posted: 22 May 2015 Last revised: 2 Jun 2016

See all articles by Scott Titshaw

Scott Titshaw

Mercer University School of Law; Mercer University - Walter F. George School of Law

Date Written: January 1, 2016

Abstract

This Article analyzes the word “spouse” in the European Union's Family Migration Directives in detail, focusing on the treatment of married bi-national same-sex couples. Through these directives, the European Union exercises significant authority over family-based immigration and internal migration, expressly providing immigration rights to the “spouses” of E.U. citizens and legal residents. However, family law, including the familial status of “spouses” is governed by individual E.U. member states. While a growing number of member states authorize same-sex marriage, the majority still does not. The Union, therefore, must determine how to treat migrating couples who are legal spouses in one member state, but not in another. This issue echoes the choice the U.S. faced in 1996 and again in 2013: Should federal law determine spousal status based on the law of the jurisdiction where a marriage was celebrated or where the couple resides, or should it create its own independent federal definition? The two U.S. approaches, a federal definition and a place-of-celebration choice-of-law rule, may help Europeans as they develop their own answer. This Article describes and rigorously applies the European Court of Justice's five methods of directive interpretation (textual, systematic, historical, teleological, and comparative analyses) to the directives, concluding that the best interpretations of the directives result in an autonomous definition of “spouse” that includes same-sex spouses or in a member-state-of-celebration choice-of-law rule. This exercise provides some insight for European courts and scholars about the various paths the E.C.J. may take to interpret the word “spouse” in the Family Migration Directives. It also provides an introduction to European family-based immigration and an example of the interpretation of directives generally, for judges, attorneys, scholars, and students from outside of the E.U.

Keywords: spouse, comparative, E.U., European Union, U.S., United States, immigration law, same-sex, spouse, partner, LGBT, GLBT, sexuality bi-national, E.U. law interpretation, statutory interpretation, directive interpretation, Windsor, Citizens Directive, Free Movement Directive, Family Reunification

JEL Classification: K33

Suggested Citation

Titshaw, Scott, Same-Sex Spouses Lost in Translation? How to Interpret 'Spouse' in the E.U. Family Migration Directives (January 1, 2016). 34 Boston University International Law Journal 47 (2016). Available at SSRN: https://ssrn.com/abstract=2608421

Scott Titshaw (Contact Author)

Mercer University School of Law ( email )

1400 Coleman Avenue
Atlanta, GA 30341-4155
United States

Mercer University - Walter F. George School of Law ( email )

1021 Georgia Ave
Macon, GA 31207-0001
United States

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