Sound the Shofar in Luxembourg: Cross-Border Recognition of Same-Sex Spouses in the European Union and Israel's Ben Ari v. Director of Population Administration

Abstract

In March of 2017, the European Court of Justice (ECJ) received a preliminary reference from the Constitutional Court of Romania seeking guidance on the proper implementation of Directive 2004/38/EC, commonly known as the Citizen’s Rights Directive, and its applicability to same-sex spouses. This Article is the first to argue that a proper decision by the ECJ would force Member States to recognize—to an extent necessary for purposes of providing and protecting the fundamental EU Citizen’s right to free movement—marriages and equivalent partnership recognitions conducted and legally recognized in other Member States. This unique argument derives from a comparative analysis of Israeli jurisprudence, most notably the Israeli High Court of Justice’s ruling in Ben Ari v. Director of Population Administration. This Article explores the interpretation of Directive 2004/38/EC, which stipulates the freedom of movement for workers within the Member States is a fundamental right guaranteed to all citizens so long as certain employment criterion is met. This right, in general, extends to the immediate family and dependents of the worker who is asserting that right, meaning that in a heterosexual marriage, the husband or wife of a worker who decides to relocate to another EU Member State to work can move with their partner and live without major legal problems or immigration status concerns. While EU law currently guarantees these spousal rights, the definition of marriage is left to the individual Member States. In balancing the limitations of EU competences in the realm of family law against the need to protect fundamental rights of EU citizens, this article argues the ECJ could be guided by the Israeli High Court of Justice, which crafted an opinion mandating that the Israeli government record same-sex couples legally married abroad as “married” in the official population registry. This recording entitles the partners to prima facie evidence of their marital status, thus affording them the rights of married couples under Israeli law without constituting an official “marriage” under the laws of Israel. By combining the wisdom of the Israeli decision with the unique limitations of the EU, this article argues that the ECJ should require all Member States to acknowledge the prima facie validity of cross-border legal same-sex marriages only to the extent necessary to allow the Member State to provide the rights and protections guaranteed as fundamental under EU law.