Judicial Impediments to Legislating Equality for Same-Sex Couples in the European Union

In the United States, the state and federal courts often has been the first port of call for activists hoping to advance the cause of same-sex couples. State courts, in particular, have ruled on occasion that guarantees of equal rights or due process contained in state constitutions require recognition of same-sex marriage or civil unions. These court decisions, in turn, have sparked a legislative backlash. Legislators and voters have rejected these court decisions by amending state constitutions to limit the rights of same-sex couples. The European Union represents, in some ways, the mirror image of the United States experience. The EU 'legislators' - represented by the Council of Ministers and the European Parliament - have adopted 'progressive' legislation, including laws prohibiting discrimination based on sexual orientation. The European Court of Justice, however, has provided very narrow interpretations of the content of these 'equal rights' guarantees. In particular, the Court of Justice has ruled that discrimination against same-sex couples - in denial of employment rights available to opposite-sex unmarried couples, for example - does not constitute discrimination based on sexual orientation. This article traces the development of the EU position, and compares and contrasts it with similar developments in the US courts and legislatures.