European Court Could Rule Traditional Marriage Benefits Discriminatory

by Terrence McKeegan

LUXEMBOURG, March 3, 2011 (C-FAM) - Legal experts warn that a European court is on the verge of deciding that Germany’s privileged legal status for traditional marriage violates European Union law.

An Advocate General for the European Court of Justice, which is the highest court in matters of European Union law, issued an opinion to the court which states that same-sex couples must have access to the same employment benefits as married couples in every EU state, regardless of a state’s constitutional laws.

While the opinion of the Advocate General, one of eight that assist the court, is not binding on the court, the opinions are almost always followed.

A leading Austrian homosexual rights activist has called the Advocate General’s opinion “groundbreaking”.  “If the ECJ follows it, all 27 member-states will have to grant same-sex couples access to all the employment benefits married couples enjoy, no matter if they allow registered partnership or not,” said Dr. Helmut Graupner.

Such a legal theory taken to its logical end could go further than just changing employment benefits and would likely be used to try to overturn traditional marriage laws in each of the 27 countries of the European Union. This scenario has been met by strong opposition from center right human rights lawyers.

“The European Union was founded on respect for national sovereignty,” Roger Kiska, Legal Counsel for the Alliance Defense Fund, told the Friday Fax. “If the Advocate General’s opinion is followed, it destroys this sovereignty making all European nations vulnerable to legislation promoting anti-life and anti-family laws despite the national will of that country. It is not the role of the ECJ to legislate for all of Europe without Europe having a say in the matter,” said Kiska.

The case, Jürgen Römer vs. City of Hamburg, involves a retired government employee from Germany who entered into a same-sex registered partnership under German law. Römer sued the German city for receiving a lower pension than that received by a pensioner that was married.  German law allows for marriage only to opposite-sex couples and registered partnerships only to same-sex couples.

Because the case involves the question of state law potentially conflicting with European Union law, the case was referred by a German court to the European court for a preliminary ruling to determine whether the German law violates a recent EU Anti-Discrimination Directive that applies to employment.

The ECJ’s ruling is binding on Germany to the extent that the ECJ interprets EU law in the case.

Last year, Germany came under pressure from homosexual rights groups for initially blocking the anti-discrimination directive, arguing that there was no legal authority for the EU to intervene in some of the areas covered in the directive.

According to the European Commission website, “Registered partnerships allow 2 people who live together as a couple to register their union with the relevant public authority in their country of residence.”  Currently, 12 of the 27 EU states do not recognize registered partnerships as being equivalent to marriage.

Court observers believe a final ruling by the judges of the ECJ in the case is imminent.