Same Sex Marriage and Free Movement in the EU
Immigration and Benefits for Gay Families Based on European Law
Jun 1, 2009
To date, the Netherlands, Belgium, Spain, Norway, and Sweden are the only European countries to provide full marriage rights to all their citizens. However, European countries are far more likely to provide some protection to their same sex families than American states. EU countries that provide some level of protection include the Czech Republic, Denmark, Finland, France, Germany, Hungary, Luxembourg, Portugal, Slovenia, and the UK. Furthermore, EU citizenship confers certain rights beyond nationality.
Freedom of Movement for Same Sex Partners
As in the United States, nationals of EU countries are welcome to move freely across borders within the Union. This right is guaranteed by Articles 18 and 39 of the EC Treaty. However, since these are national borders, unlike U.S. states, there are some greater limitations. Freedom of movement is not unlimited—it is in many cases contingent on one's status as a worker.
Fortunately, an EU Directive recognizes same sex relationships by updating earlier provisions to allow a worker's family to travel with him or her to another Member State, whether or not that family derives from a legal marriage in the origin country. People who are in a formally recognized union, like a civil union or partnership, qualify as family members along with either partner's children, and so do those who have been living as partners for a significant amount of time but do not have the option of legal marriage.
This Directive allows nationals of an EU Member State that is not protective of same sex partners' rights—some of the Eastern European states, for example—to re-locate to a more friendly state. It also means that, by virtue of Article 12 of the EC Treaty, they must receive the same benefits as nationals of the destination state once they arrive. This includes recognition of the partnership and benefits for the partner and any children.
Recognition of Same Sex Marriages in Other Countries
In addition to the federal guarantees such as freedom of movement, the EU system also features the option of horizontal recognition, from one state to another. This means that not only can Europeans in states that are hostile to same sex couples move to a more permissive state, but also that those in permissive states can in some cases take their marital status with them.
Many European states that have a civil union or partnership status confer that status, and its benefits, to same sex married couples from another state. Some states, like France, even consider those who are legally married in another European state to be married in France, even though French nationals cannot legally marry someone of the same sex in France.
This is unlike the situation in the United States where, though some states do recognize same sex marriages conferred in other states, there are no federal requirements or benefits dealing with same sex marriage, and the DOMA both denies federal benefits to same sex couples on the basis of marriage and allows states to discriminate against couples married in another state. Perhaps, however, as more European states provide horizontal recognition of same sex marriages and recognize these marriages themselves, U.S. states will follow in their path.
Source:
Dmitry Kochenov, Presentation, Global Arc of Justice Conference, UCLA, March 13 2009.
