New tendencies regarding same-sex marriage in the member states of the European Union: A brief inside and outside perspective

• Author: Jone-Itxaro Elizondo Urrestarazu - Oana-Mariuca Petrescu
• Position: PhD Candidate, FPI personnel in European Integration Research Team, Faculty of Law, University of Deusto, Bilbao, Spain - PhD, postdoctoral researcher in the European Integration Research Team, Faculty of Law, University of Deusto, Bilbao, Spain
• Pages: 15-30

LESIJ NO. XX, VOL. 2/2013

NEW TENDENCIES REGARDING SAME-SEX MARRIAGE IN

THE MEMBER STATES OF THE EUROPEAN UNION:

– A brief inside and outside perspective –

Jone-Itxaro ELIZONDO URRESTARAZU*

Oana-Mariuca PETRESCU**

Abstract

Sexual orientation discrimination has been recently outlined within the Plena ry Session of the

European Pa rliament that took place in Brussels, on 24th May 2012 as a prior ity in the fight aga inst

discrimination of all kind, making a “call on EU member states to consider giving access to cohabitation,

registered partnerships or marriage to lesbian, gay, bisexual and transgender (LGBT) people”. Taking this

statement as a starting point, this paper aims first to briefly analyse the European Union’s legislation

defending sexual orientation discrimination and its limits. After that, a comparison between the Spanish and

Romanian legislations will be made, choosing thus two countries within the EU that have very different paths

and views in this matter, finally assessing the recent Tribunal Constitucional judgment regarding the

constitutionality of same-sex marriage . In the same line our analysis will also focus on giving an overview of

the EU panor ama focusing on those countries that have extreme and opposite views about the matter. This

study would not be complete without taking into account the contrary situation tha t is taking place in certain

non-Member States of EU such as: Ukraine, Russia or Moldova. This fact was also highlighted by the

European Parliament in the last Plenary Session saying that “in the European Union [and in other European

states, referr ing to the recent situa tions occurred in Ukra ine, Russian Federa tion or Moldova], the

fundamental rights of LGBT people are not yet fully upheld”.

Keywords: European Union, same sex marriage, sexual orienta tion discrimination, Treaty

of Lisbon.

Introduction

Same-sex marriage

1 is legal in fourteen countries in the world: Argentina (2010), Belgium

(2003), Canada (2005), Iceland (2010), Netherlands (2001), Norway (2008), Portugal (2010),

South Africa (2006), Spain (2005), Sweden (2009), Denmark (2012), Uruguay (2013), New

Zealand (2013) and France (2013). It is also legal in twelve states of the United States2, as well as

the district of Columbia and the native-American tribes of Coquille, Little Traverse Bay Bands of

Odawa Indians and Suquamish; in some of the states in Mexico (Mexico D.F., Oaxaca and

Quintana Roo); and in fourteen out of twenty-six Brazilian states3.

* PhD Candidate, FPI personnel in European Integr ation Research Team, Faculty of Law, University of

Deusto, Bilbao, Spain (e-mail: jone.elizondo@deusto.es).

** PhD, postdoctoral researcher in the European Integration Research Team, Faculty of Law, University of

Deusto, Bilbao, Spain (e-mail: oana.petrescu@deusto.es).

1 This term (same sex marriage) will be used regarding lesbian and gay marriages, as is the term used in

the global academic world.

2 Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York,

Rhode Island, Vermont and Washington. GayMarriageProűon, “Should gay marriage be legal?”

http://gaymarriage.procon.org/, accessed 20 May 2013.

3 EFE Agency, “México DF legaliza el matrimonio homosexual”, El País, December 22, 2009, accessed March

11 2013, http://elpais.com/diario/2009/12/22/sociedad/1261436409_850215.html. EFE Agency, “Solo en once países

del mundo está legalizado el matrimonio homosexual”, Rtve.es, November 6, 2012, accessed March 11 2013,

Lex ET Scientia International Journal

LESIJ NO. XX, VOL. 2/2013

There are also some states that recognize same-sex marriage but do not carry them out,

such as: the states of Brazil wh ich do not perform same-sex marriage, Aruba, űuraçao and St

Martins (which recognizes marriages carried out in the Netherlands), Israel, Mexico (for marriages

taken place in Mexico) and some US states

4. Outside the European Union (EU), it is being studied

in many places such as Colombia5 or Brazil. In both states right now it is possible to registry same

sex marriages in front of a public notary following important sentences in both countries but there

is not an approved law allowing it yet. In Nepal it remains in agenda but the future of the law

remains uncertain.

Meanwhile, in the EU Member States a heterogeneous map is being drawn in the issue of

same sex marriage. On the one hand, more than a half of the countries that perform same -sex

marriage in equality with the heterosexual ones in the world are member states of the EU. On the

other hand, th ere are others that have modified their laws in order to state clearl y that marriage

can only be performed between a man and a woman.

The EU itself has made, by ways of producing laws (such as 2000/426 and 2000/78

Directives7) which form part of the acquis communautair e, efforts to eradicate sexual orientation

discrimination but harmonization of this issue remains undone.

An analytical description of the issue will be offered, describing the efforts made by the

EU in this respect via the primary law, secondary law and multiple resolutions from the European

Parliament or statements from the heads of the institutions.

Also, an analysis of the Spanish and Romanian situation will be given. The choice of these

case-studies was made based in the different situations they are living towards same-sex marriage.

Both are Members of the EU, but whereas Spain entered in 1986, Romania joined in 2007. Both

have applied the above mentioned Directives in their territory but the outcome of that application

has been very different. Spain approved same-sex marriage in 2005, but it was claimed

unconstitutional from one of the political parties (the right-winged Partido Popula r) and its future

remained uncertain until the Constitutional Tribunal sentence reaffirmed its constitutionality last

November. In Romania same-sex couples do not have the right to marry nor to civil unions.

After the analysis of the two specific cases, an overview of the issue in the EU will be

offered, stating which countries have already approved s ame-sex marriage, which have it in the

agenda and which ones have made changes in their constitutions so that heterosexual marriage is

reinforced. A look to the Ukrainian, Russian and Moldavian situations will be offered so as to

compare the situation inside and outside the borders of th e EU, where strong anti-homosexual

movements are taking place. Finally, some concluding remarks will be given.

http://www.rtve.es/noticias/20121106/solo-once-paises-del-mundo-esta-legalizado-matrimonio-homosexual/

573157.shtml.

4 Freedom To Marry, “The Freedom to Marry Internationally”, December 2012, accessed March 11, 2013

http://www.freedomtomarry.org/landscape/entry/c/international; USA Today, “Israeli high court orders gay

marriage recognition” November 21, 2006, accessed March 11 2013, http://usatoday30.

usatoday.com/news/world/2006-11-21-israel-gay-marriage_x.htm.

5 As for 25th of April 2013 űolombia’s parliament rejected same sex marriage law, although, as stated, in

2007 approved the possibility following a Constitutional Court ruling. It gives same sex marriages similar

inheritance, pension and social security rights that heterosexual marriages do.

6 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between

persons irrespective of racial or ethnic origin, published in Official Journal of the European Union, L 180 of

19/07/2000.

7 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal

treatment in employment and occupation, published in Official Journal of the European Union, L 303 of

02/12/2000.