On the 'Entry Options' for the 'Right to Love': Federalizing Legal Opportunities for LGBT Movements in the EU

Abstract

This paper unfolds litigation opportunities for LGBT plaintiffs embedded in EU law. It explores both established tracks and future prospects for fostering the EU’s (at times half-hearted) goodbye to heteronormativity. The paper demonstrates how American federalism theories can pave the way for the "right to love" in the European Union, whose mobile sexual citizens are equally benefiting from the "leave" and "entry options", requiring more heteronormative states to comply with the approaches to sexuality adopted by their more tolerant peers. The relevance of this normative framework based on federal "entry options" for the EU is further exemplified by a recent judgment of the US Supreme Court in Obergefell v. Hodges (2015). The strategy of activating EU law in litigation for mobile couples could in the medium- to short-term perspective spill over the recognition of various forms of legal unions for gay and lesbian couples all over the Union, promoting tolerance, equality and respect. The paper reveals that Citizenship Directive 2004/38/EC and actio popularis at the national level offer two major federal keys for activating this anticipated sexual emancipation via EU law.

Keywords: LGBT rights; EU law; Non-discrimination; Federalism; Freedom of intimate association