Triangular Marriage Equality or Separate But Equal: Moving Targets of Conceptual Confusion?
14 Pages Posted: 14 Jul 2015
Date Written: July 13, 2015
In the last two decades, the rights of same-sex couples have been steadily increased within the European Union and its Member States. Two main strands of development can be identified. Firstly, many EU Member States introduced some sort of (same-sex) Civil Union or Life partnership and an increasing number of Member States opened marriage to same-sex couples. This enables same-sex couples to enter legal institutions which convey similar or identical duties and rights than the traditional (heteronormative) institution of marriage. Secondly, the Court of Justice of the European Union (CJEU) has significantly extended the rights of same-sex couples by recognising the rights of same-sex life partners in a civil union not to be discriminated in comparison to married opposite-sex couples if the institutions are sufficiently similar. In principle, the CJEU thus accepts that the two legal institutions, civil union and marriage, can be compared for the purpose of the Framework Directive 2000/78/EC although they are not identical and are legally distinct. The paper will discuss the CJEU’s approach towards equal treatment of same-sex unions and marriages and how these approach potentially contradict with developments on national level (or could be reconciled). It tries to conceptualise the CJEU case law and highlight conceptual flaws within it which potentially undermine the protection on national level.
Keywords: same-sex couples, life partnership, marriage, CJEU, civil unions, non discrimination, equal treatment
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