Dignity or discrimination: what paves the road towards equal recognition of same-sex couples in the European Union?

The article was first presented at the Roundtable on Comparative Constitutional Law at the  Robert H. Smith Center for the Constitution at James Madison's Montpelier, Virginia, USA (Oct 2017).

Abstract

The article analyses possibilities for the Court of Justice of the EU to go beyond its current narrow approach towards same-sex couples’ rights within the EU non-discrimination law framework, considering a comparative treatment of dignity-based arguments. It critically reviews the CJEU’s current approach exclusively focusing on direct discrimination and the comparator paradigm. By doing so, the Court has tolerated a situation of de facto discrimination and limited advancement of same-sex rights. The question is then whether the situation could be overcome if the CJEU would follow other courts and develop reasoning based on dignity to underpin the EU non-discrimination analysis with substantive meaning. The article rejects this proposition. Dignity is not suitable because it is both too wide and to narrow to ensure certainty and substantive protection within EU non-discrimination law. While the concept of dignity protects a minimum standard and can provide a floor of rights, non-discrimination law fosters equality by imposing procedural standards and challenging measures that effect groups differently. The concepts should thus not be conflated. Instead, a consistent application of the concepts of direct and indirect discrimination seems more promising.

Keywords:

• EU non-discrimination law
• equal dignity
• same-sex marriage
• legal recognition of same-sex relationships

Acknowledgements

I would like to thank all the participants in the Roundtable on Comparative Constitutional Law at the Robert Smith Centre for the Constitutions Robert H. Smith Center for the Constitution at James Madison's Montpelier, Virginia, USA (Oct 2017), and Prof Miller (Washington and Lee University) and Prof Mathews (Penn State Law) for the useful comments and discussion. I also thank the journal’s editorial team and blind reviewers for the useful comments. The usual disclaimer applies.

Notes

The article was first presented at the Roundtable on Comparative Constitutional Law at the  Robert H. Smith Center for the Constitution at James Madison's Montpelier, Virginia, USA (Oct 2017).