European Court Could Rule Against Traditional Marriage

By Terrence McKeegan, J.D. | 2011

LUXEMBOURG, March 3 (C-FAM) Legal experts warn that a European court is on the verge of issuing an ruling that Germany’s constitutional laws protecting marriage and the family violate EU law.

Last year, 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 ECJ which stated 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. 

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.

Each of the eight Advocate Generals of the ECJ assist the judges of the court by providing a legal opinion on the case assigned.  The opinion of the assigned Advocate General carries great weight and is followed by the court’s judges in most cases.

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.

But some experts have warned that an ECJ ruling accepting the Advocate General’s opinion could potentially overturn all traditional marriage laws in the European Union.

“The European Union was founded based on respect for national sovereignty,” Roger Kiska, Legal Counsel for the Alliance Defense Fund, told the Friday Fax. “The current power grab by the European Court of Justice, if the Advocate General’s opinion is followed, 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.

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

Because the case involves question of state law potentially conflicting with European Union law, the case was referred by a German court to the ECJ for a preliminary ruling to determine whether the differences in pensions for those married versus those in a registered partnership violate EU non-discrimination laws.  The ECJ’s ruling is binding on Germany to the extent that the ECJ interprets EU law in the case.

Article 21 of the Charter of Fundamental Rights of the European Union, which is part of binding EU treaty law, forbids discrimination on the grounds of sexual orientation.

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.

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