Jule Mulder

Some more equal than others?: Matrimonial benefits and the CJEU case law on the discrimination on the ground of sexual orientation

This article discusses the recent case law of the Court of Justice of the European Union (CJEU) dealing with discrimination on the grounds of sexual orientation in relation to matrimonial benefits. It argues that the Court, by focusing on direct discrimination and by separating sex and sexuality, upholds the normative value of marriage, and consequently reinforces the traditional hetero-normative ideal of the nuclear family which privileges dependencies and gender roles. This should be criticized because the hetero-normative ideal continues to privilege the normative society which is detrimental for homosexuals as well as women. If European non-discrimination law aims at fostering equality within diversity, the Court needs to refrain from focusing on similarities and avoid making essential certain characteristics such as sex and sexuality. Instead it should evaluate the cases under indirect discrimination which are more sensitive to structural or social differences and therefore are better suited to foster equality despite differences.

Dignity or discrimination: what paves the road towards equal recognition of same-sex couples in the European Union?

Abstract The article analyses possibilities for the Court of Justice of the EU to go beyond its current narrow approach towards same-sex couples’ rights within the EU non-discrimination law framework, considering a comparative treatment of dignity-based arguments. It critically reviews the CJEU’s current approach exclusively focusing on direct discrimination and the comparator paradigm. By doing so, the Court has tolerated a situation of de facto discrimination and limited advancement of same-sex rights. The question is then whether the situation could be overcome if the CJEU would follow other courts and develop reasoning based on dignity to underpin the EU non-discrimination analysis with substantive meaning. The article rejects this proposition. Dignity is not suitable because it is both too wide and to narrow to ensure certainty and substantive protection within EU non-discrimination law. While the concept of dignity protects a minimum standard and can provide a floor of rights, non-discrimination law fosters equality by imposing procedural standards and challenging measures that effect groups differently. The concepts should thus not be conflated. Instead, a consistent application of the concepts of direct and indirect discrimination seems more promising.