Who is a ‘spouse’ under the Citizens’ Rights Directive? The prospect of mutual recognition of same-sex marriages in the EU

Abstract

The Supreme Court of the US held in Obergefell v Hodges that the Fourteenth Amendment of the US Constitution required every State to legalise same-sex marriage and to recognise same-sex marriages lawfully conducted in other States.

This article poses the same question in the European context: if a case concerning same-sex marriage were to present itself, what conclusion could the Court of Justice of the EU reach that was both appropriate and legitimate under EU law and, more specifically, the Citizens’ Rights Directive ? By contrast to the US Supreme Court, the Court of Justice of the EU does not have the competence to require Member States to legalise same-sex marriage in their national laws. However, this article will argue that the Court of Justice is fully competent to require that all Member States recognise same-sex marriages for the purposes of EU equality and free movement law where that marriage involves an EU citizen and was legally conducted in one of the EU Member States.

Mutual recognition of same-sex spouses as 'spouses under the Citizens Rights Directive is crucial, not only to ensure the effective enjoyment by Union citizens of their right to free movement, but also to prevent discrimination on the basis of sexual orientation and to ensure respect for their family life.

Sweet and Maxwell: European Law Review http://www.sweetandmaxwell.co.uk/catalogue/productdetails.aspx?recordid=427&productid=6968

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