Single market dilemma over gay weddings

Date: 25/04/1996

By Fiona McHugh

MOVES to allow Dutch homosexual couples to get married could pose serious problems for law-makers throughout the Union.

Under EU law, member states are obliged to recognise marriages made in other member states, but only if the couple in question is heterosexual.

That means that if current moves to legalise homosexual marriages in the Netherlands come to fruition and a Dutch married couple of the same sex were to move, for example, to France or Belgium (where homosexual marriages are banned), their union would be considered illegal.

Given that economic incentives designed to tempt young couples into institutionalising their relationships exist in many EU countries, the lack of a single market in marriages has long been a bone of contention.

Sweden, Denmark and Norway allow gay couples to register their partnerships as such, but do not permit them to marry. While registered partners enjoy many benefits reserved for heterosexual couples in other member states, such as inheritance rights, they may not adopt children. Certain cities in Spain and a number of Parisian districts also allow gay couples to register. But most EU countries refuse to stamp relationships which do not fit into the Adam-and-Eve mould with their official seal.

Gay rights activists claim that bans on homosexual marriages amount to discrimination by the state. They have long sought ways of challenging such laws, but so far have been unable to build watertight legal arguments against them.

Because the Union's equal opportunities law drafted almost two decades ago only covers discrimination between men and women, it has been of little help. Social Affairs Commissioner Pádraig Flynn is pushing to have the directive's boundaries extended at the Intergovernmental Conference to cover all forms of discrimination.

But, given that social affairs ministers refused to countenance the inclusion of a blanket ban on discrimination in the parental leave directive and that, until recently, homosexuality itself was outlawed in Ireland, his chances of success are undoubtedly slim.

However, lawyers representing homosexual groups are planning another line of attack. They argue that countries which refuse to recognise legal marriages - gay or otherwise - made in other member states could, in future, be challenged for hampering citizens' rights to move freely within the bloc.

“If the Dutch law goes through, it will create huge legal problems,” predicts Yannick Chevalier of Egalité, an organisation fighting for gay rights within EU institutions. “If Belgium refuses to recognise the marriage of a Dutch gay couple, then obviously that will constitute an obstacle to the couple's free movement.”

German MEP Claudia Roth, president of the European Parliament's Green group, and a number of Dutch and Swedish MEPs have mounted a renewed campaign to end legal discrimination against homosexuals.

She is expected to ask the Commission how it plans to improve the situation.

The US is already grappling with the problems caused by the Hawaiian Supreme Court's decision to legalise same-sex marriages, as several of the more conservative Southern states look for ways of skirting their constitutional obligation to recognise Hawaiian gay unions.

The difficulties encountered there provide a glimpse of the kind of legal battles likely to occur here, should the Dutch government break ranks with its EU partners and give its blessing to such marriages.