After the Celebration: Marriage Equality in EU Law post-Coman in Eight Questions and Some Further Thoughts

Maastricht Journal of European and Comparative Law, 27-5, 2020. 549-572.

University of Groningen Faculty of Law Research Paper No. 38/2020

24 Pages Posted: 27 Aug 2020 Last revised: 23 Jun 2021

See all articles by Dimitry Kochenov

Dimitry Kochenov

CEU Democracy Institute, Budapest; CEU Department of Legal Studies, Vienna

Uladzislau Belavusau

T.M.C. Asser Institute - University of Amsterdam; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Date Written: July 6, 2020

Abstract

This article provides a detailed critical analysis of the case of Coman, where the Court of Justice of the EU clarified that the meaning of the term ‘spouse’ in Directive 2004/38 was gender-neutral, opening up the door for same-sex marriage recognition for immigration purposes all around the EU, thus destroying the heteronormative misinterpretations of the clear language of the Directive practiced in a handful of Member States. The state of EU law after Coman is still far from perfect, however: we underline a line of important questions which remain open and which the Court will need to turn to in the near future to ensure that marriage equality in moves beyond mere proclamations in the whole territory of the Union. In particular, we: (1) Question the effectiveness of the Commission as an effective guardian of the Treaties, puzzled by its failure to make basic EU citizenship rights available to EU citizens who are in a same-sex relationship. (2) Interrogate the deficiencies of single-purpose marriage recognition and question the speed of the eventual spill-overs of such recognition into other fields outside immigration per se. (3) We demonstrate that Coman is a textbook example of the free-movement paradigm of non-discrimination at work, which is, besides obviously being accepted in EU law, also deeply questionable, since those who do not move within the internal market might also want to have a family. (4) Issues of coherence among different instruments of secondary EU law equally arise, (5) just as the issue of ‘genuine residence’, which Coman brings up, whatever this might mean in the 21st century with its fast pace of life and increasing numbers of people – not all of them heterosexual – living between countries and homes. (6) Numerous questions arise as a result of the natural conflict, which is omnipresent, between principles of EU law and private international law approaches. (7) The CJEU’s language of ‘strengthening family life’ is both dangerous and out of place, in our respectful opinions, informed by the desire to keep the Court out of Europeans’ (and Americans’, as in Coman) spousal beds. (8) The last issue we raise is the question of ‘what’s next?’ for others who are still arbitrarily persecuted by EU and national law and for whom (and how many of them) they love. Once the principle is established that states should not interfere with our sexuality without imperative reasons of the public good – what the LGBTQ community has been subjected to abundantly and still suffers from, and to which Coman is a wonderful illustration – the same test is bound to apply in other contexts, especially polygamy and other persecuted or ‘non-recognised’ loving relationships. But first we turn back to the facts and the context of the case, and praise the Court for a significant achievement, which righted the failure of the Commission to ensure the basic applicability of the Directive 2004/38 to gay European citizens.

Keywords: Coman, marriage equality, non-discrimination, same-sex marriage, EU law

Suggested Citation

Kochenov, Dimitry and Belavusau, Uladzislau, After the Celebration: Marriage Equality in EU Law post-Coman in Eight Questions and Some Further Thoughts (July 6, 2020). Maastricht Journal of European and Comparative Law, 27-5, 2020. 549-572. , University of Groningen Faculty of Law Research Paper No. 38/2020, Available at SSRN: https://ssrn.com/abstract=3644188

Dimitry Kochenov (Contact Author)

CEU Democracy Institute, Budapest ( email )

Nador utca 9
Budapest, H-1051
Hungary

CEU Department of Legal Studies, Vienna ( email )

Quellenstraße 51
Vienna, 1100
Austria

Uladzislau Belavusau

T.M.C. Asser Institute - University of Amsterdam ( email )

R.J. Schimmelpennincklaan 20-22
The Hague, 2517 JN
Netherlands

HOME PAGE: http://www.uva.nl/en/profile/b/e/u.belavusau/u.belavusau.html

University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Boalt Hall
Berkeley, CA 94720-7200
United States

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