Marriage, Family, and National Sovereignty in the European Union

In recent years, the European Union (EU) has taken on a symbolic role as a champion of so-called “social progress” and liberal values, especially in light of greater European integration and the welcoming into its fold of more, mainly post-communist eastern European nations. Naturally, as debates over foundational social issues have become increasingly pro­nounced and polarized, such as on the definition of marriage and family and the relationship of the state to these, questions have arisen as to what constitutes a hypothesized shared set of European values. In light of recent existential challenges to the EU and the aspirations it sets for itself, its current socially progressive trajectory has begun to be questioned with more force, as Member States begin to reassert their sovereignty, identity, and traditional cultural values—values that appeared to be on the verge of disappearing into the “end of history.” The eventual universal acceptance of same-sex “marriage” in particular had become almost a foregone conclusion and article of faith within EU institutions, but a number of countries have started, albeit to differing extents, to push back against this. This has largely occurred via popular initiatives and electoral shifts, particularly in eastern European nations like Poland and Hungary, as well as by way of the re-emergence of a traditionalist narrative within mainstream political discourse, rather than it being relegated to the realm of fringe populism. The dividing lines between the liberal, globalist, and “tolerant” ruling elite on the one hand and the “reactionary” and discon­tented voting populace on the other have become clearer than ever.

Current Provisions and Trends

Foundational EU documents are relatively thin on explicit references to the family, due to the fact that specific regulation of such was always intended to be a Member State competence.1 On marriage specifically, Article 9 provides that “the right to marry and the right to found a fam­ily shall be guaranteed in accordance with the national laws governing the exercise of these rights.” Such limited references mean, in accordance with the principles of conferral, subsidiarity, and proportionality, that Member States are free to define marriage and the family as they see fit without Union interference.2 The self-understanding of the EU, however, in light of its anti-discrimination provisions with respect to sexual ori­entation in Article 21 of the CFREU and in Articles 10 and 19 of the Treaty on the Functioning of the European Union (TFEU), as well as the professed attitudes of many of her politicians and top bureaucrats, mud­dies the waters on this issue.

To date, 16 of the 28 EU Member States recognize only the union of a man and a woman as marriage and, of these, 7 (Bulgaria, Croatia, Hungary, Latvia, Lithuania, Poland, and Slovakia) have constitution­ally enshrined this definition.3 In addition to same-sex “marriage,” the other twelve (Belgium; Denmark; Finland; France; Ireland; Luxembourg; Malta, which recognizes same-sex unions conducted abroad; the Netherlands; Portugal; Spain; Sweden; and the United Kingdom, exclud­ing Northern Ireland) also invariably allow joint adoption of children by same-sex couples, a policy also imposed by the Constitutional Court in Austria and at different stages of being pursued by the governments of Czechia and Germany.4 Of the countries that do not recognize same-sex “marriage,” Austria, Croatia, Cyprus, Czechia, Estonia, Germany, Greece, Hungary, Italy, and Slovenia all have statutory civil union schemes for same-sex couples. A 2015 Eurobarometer poll largely reflects the legal situation, with popular support for EU-wide legality of same-sex “mar­riage” being far higher in those Member States that have already enacted marriage or civil unions for same-sex couples than in those countries which recognize neither.5

Despite this diversity of views, however, the EU as a bloc and an insti­tution appears to be taking a more unified approach. Even in light of the conservative stances maintained by a large portion of its members, the EU consistently votes as a bloc at the United Nations in favor of resolu­tions regarding “sexual orientation and gender identity,” as well as against those on the protection of the family where the resolution does not acknowledge the existence of “various forms of the family.”6 The Court of Justice of the European Union (CJEU) has also on a number of occa­sions ruled that where a Member State reserves marriage to opposite-sex couples, but also provides an analogous life partnership scheme to same-sex couples, it amounts to direct discrimination on the basis of sexual orientation to not afford the same material benefits to both institutions in a supposedly “arbitrary” manner.7 Judicial activism from the European Court of Human Rights (ECtHR) within the ambit of the Council of Europe has also served to provide potential sources of CJEU jurispru­dence in cases indicating that same-sex relations should be understood as falling under the right to private and family life in Article 8 of the European Convention on Human Rights (ECHR).8

A resolution adopted by the European Parliament in Strasbourg on February 4, 2014 on the “roadmap against homophobia and discrimination on grounds of sexual orientation and gender identity” called on the Commission to produce guidelines ensuring respect “for all forms of families legally recognized under Member States’ national laws,” as well as to make proposals “for the mutual recognition of the effects of all civil status documents across the EU, in order to reduce discriminatory legal and administrative barriers for citizens and their families who exercise their right to free movement.”9 Malta holds the Presidency of the Council of the European Union for 2017, and has scheduled a high-level minis­terial conference in order to revisit the roadmap, identifying “LGBTIQ issues” (Lesbian, Gay, Bisexual, Transgender, Intersex, and Questioning) as a core part of its social inclusion policy in its presidential capacity.10

On March 12, 2015, the Parliament adopted another resolution on “the Annual Report on Human Rights and Democracy in the World 2013 and the European Union’s policy on the matter.” Paragraph 162 reads that the Parliament has taken note “of the legalization of same-sex marriage or same-sex civil unions in an increasing number of countries—17 to date—around the world; [and] encourages the EU institutions and the Member States to further contribute to reflection on the recognition of same-sex marriage or same-sex civil union as a political, social and human and civil rights issue.”11 Just over a year later, the Council of the European Union on June 16, 2016 reached consensus for the first time among all 28 Member States on a Netherlands-backed condemnation of “discrimination on the grounds of sexual orientation,” though this did not purport to explicitly impose a mandate on States to redefine marriage in order to remedy said discrimination.12

In addition to “soft law” and political pressure occurring within the organs of the EU itself, peering into the ideological trajectory of the EU can be achieved via the windows of its informal advocacy as well. This has included, for example, the participation of the European Commission in the EuroPride2016 Canal Parade with its own boat.13 The incumbent First Vice-President of the Commission, Frans Timmermans, delivered the keynote address at the 2015 Equality Gala organized in Brussels by ILGA-Europe (International Lesbian, Gay, Bisexual, Trans and Intersex Association), the transcript of which is hosted on the official website of the European Commission. In the course of this speech, Timmermans stated his belief that “the Commission should go forward, and try to get all Member States in the EU to unreservedly accept same-sex marriage as other marriages,” or at the very least recognize same-sex “marriages” contracted in other States, as well as his pleasure regarding what he per­ceived as the quick turnaround in countries like Poland, which a couple of years prior seemed “beyond hope of redemption because of the ever­lasting oppression of the Catholic Church.”14

Article 245 of the Treaty on European Union (TEU) and Article 17 of the TFEU both make clear that independence and objectivity go to the core of the duties of the Commission and its members.15 This raises ques­tions regarding the capacity in which Timmermans made this politically charged statement at an event organized by a pro-LGBT advocacy group. Given that it has been published on the website of the Commission, it is only reasonable to assume that it was either made in his official capacity or, at the very least, that the Commission is willing to officially endorse it. This indicates that the issue of same-sex “marriage,” as far as EU institu­tions are concerned, has left the realm of legitimate debate and dispute and has entered that of unchallengeable received wisdom.16

Croatian, Slovenian, and Slovak Referendums

This single-minded supranational advocacy makes sense in light of the seemingly unstoppable march of same-sex “marriage” legalization across the Western world, notably by the United States Supreme Court in the decision of Obergefell v. Hodges and in the successful Irish constitutional referendum, both of which occurred in early to mid-2015. As the EU has been forced relatively recently to face an ongoing existential crisis over the challenges it has begun to confront, both internal and external, however, fault lines are appearing where they previously would not have been expected. This had already emerged in a preliminary form in three former Eastern Bloc countries: Croatia, Slovenia, and Slovakia.

In 2013, against the wishes of the governing left-wing coalition, a ballot initiative proposing to amend the Croatian constitution to define marriage as the union of a man and a woman garnered the support of over 700,000 signatories in order to be put to referendum.17 By the time that the campaign officially began on November 8, Croatia had only been an EU Member State for just over four months, and the govern­ment was anxious about the potential outcome. Then-Prime Minister Zoran Milanović pledged to vote against it, and President Ivo Josipović labeled it “unnecessary,” saying that it would send a message that “we are not willing to accept diversity, that we want to stop throughout the democratic world a clear process of equalization of rights of all people, regardless of their different personal characteristics, in particular their sexual orientation.”18 Close to a year after the referendum was car­ried with over two-thirds of the vote, Deputy Justice Minister Sandra Artuković appeared at a conference held jointly by the EU Fundamental Rights Agency and the Council of the European Union, referring to the referendum as “unfair” and to the traditional values of her country as a “challenging barrier.”19 On September 11, 2016, however, the right-wing Croatian Democratic Union won a plurality of parliamentary seats, lead­ing to the appointment of leader Andrej Plenković as Prime Minister. During the election campaign, Plenković had unequivocally stated that the referendum represented the will of the Croatian people, that the law on same-sex partnerships would not and should not eventually give way to a redefinition of marriage, and that the position of his party was that a distinction between the two is necessary.20 This has provided some cause for optimism, on the part of pro-family groups, that Croatia may begin to chart a different path from the EU collectively, including in its capacity as a member of various international organizations such as the UN.

Slovenia also expressed a similar rejection after a referendum initiated by civic petition succeeded in nullifying a National Assembly bill which redefined marriage (the first formerly communist country in Europe to do so), garnering over 63% of the vote, with conservatives hav­ing been called upon by Pope Francis to “back the family as the structural reference point for the life of society.”21 A similarly initiated referendum in Slovakia in February 2015 aimed at bolstering the country’s constitu­tional definition of marriage as the union of a man and a woman even further, as well as proscribing same-sex and polyamorous adoption and mandatory sex education, failed to be carried due to insufficient turnout. All three questions, however, received affirmative responses from over 90% of the electorate.22 Again, a number of senior politicians expressed their displeasure at the initiative and the results, with former Prime Minister Iveta Radičová stating that the referendum was merely an attempt to “cover up the real problems” in Slovakia and that it was moti­vated by “fear of the new, the unknown, and the other”; she also labeled its supporters as xenophobes possessing “aggressive attitudes border­ing on Neo-Nazism,” and worried that “filth is all we will be left with.”23 These three campaigns have turned out to have been the precursor to the display of a broader ideological divide across the continent, in which the common thread is that the progressive pro-European political elite is finding itself increasingly at odds with significant contingents within its citizenry, whose policy concerns have largely gone ignored in the ongo­ing quest for “progress.”24

United Kingdom

That which initially seemed to be just a mild “rebellion” by a few small nations that had not had time to “catch up” may well have bloomed into a civilizational crisis in light of the current issues facing the trajectory and very existence of the EU itself. Although a substantively separate issue, the liberal and globalist project underpinning deeper European integra­tion has been deeply shaken by perceived threats to its security and the erosion of trust in the motives and competence of its architects and main­tainers. The feared domino effect of the crisis in the Eurozone, coupled with increased concern over migration and the joint immigration policy within the Schengen Area, especially in the wake of growing numbers of refugees due to the conflict in Iraq and Syria, has caused deep fractures within European society. Against the wishes of almost the entire British political establishment, the United Kingdom voted to leave the European Union on June 23, 2016. Of the Conservative Party candidates formally nominated to replace outgoing Prime Minister David Cameron after he resigned due to the result, three out of the five, including runner-up Andrea Leadsom, were on the record as either having explicitly opposed or having harbored deep reservations concerning the redefinition of marriage in England and Wales in 2013.25 A number of Eurosceptics sub­sequently given senior roles in Theresa May’s Cabinet, including Philip Hammond and David Davis, are also on the record as having opposed plans to redefine marriage in the United Kingdom.26

France

Across the Channel, when the government of France, the historical anchor and harbinger of secular humanism, progressive values, and the Enlightenment, also moved to legalize same-sex “marriage” in 2013, Socialist President François Hollande defied hundreds of thousands or, according to some estimates, even over a million protestors on the streets of Paris in pushing ahead.27 In light of Socialist policies having allegedly “destabilized families,” according to La Manif Pour Tous co-founder Ludovine de la Rochère, however, the movement is experiencing a revival, with hundreds of thousands of protestors having again taken to the streets of Paris in October 2016 to demand that presidential candidates for the 2017 election support traditional family values.28 Indeed, until recently it appeared almost certain that no left-wing candidate would successfully advance past the first round in April, and that the second round in May would without a doubt be between Les Républicains candidate François Fillon and National Front leader Marine Le Pen.29 Both candidates, to varying degrees and in differing respects, are trying to appeal to voters who are skeptical of further European integration, open borders, and uninhibited immigration, and who wish to see a return to traditional values, especially those concerning marriage and the family.

Fillon and Le Pen also both maintain relatively positive positions regarding Russia and Vladimir Putin, whose own internationally contro­versial policy program has involved the strengthening of Russian national identity by way of tying it to the Eastern Orthodox faith and traditional family values, including incentivizing marriage and childbirth and legally and socially discouraging the normalization of “non-traditional sexual lifestyles.”30 So-called “Putinism” has, in this sense, become a popular alternative to the liberal democratic order in countries questioning the current status quo, and France is no longer an exception. There any many questions to be asked concerning the sincerity of any or all of the figures involved and whether or not the notion of “traditional family values” is being cynically utilized for political gain. What is certain, however, is that what appeared not long ago to be the unchallenged narrative and trajec­tory concerning such values in Europe may not be so assured after all. A recent resurgence in French traditionalism, both socially and religiously, has begun to signal a decline in the hereunto apparent inevitability of modernity.31

Fillon’s own conservative Catholic image, a married man with five children, has been noted as being in keeping with an election focused largely on questions of national identity, and although he does not plan to directly challenge laws enabling same-sex “marriage,” he has spoken about “put[ting] parentage back on the line” and also said that “nobody can deny that a child always has a father and a mother.”32 This is recog­nized even by his pro-LGBT detractors, one of whom stated disparag­ingly that “Fillon is the true right: He has the passion for the nation, the religious anchoring, the superstition of traditions, [and] the exaltation of the family[.]”33 If predictions of a Fillon-Le Pen head-to-head matchup were to prove true, assuming that Fillon can, in defiance of his miscon­duct allegations, survive a first-round challenge on April 23 from En Marche! dark horse candidate Emmanuel Macron, then it would likely be undeniable that the political climate and conversation in France would change irrevocably, and the implications of this on the advance of the EU on marriage and family could not be understated. Even if he does not manage to advance to the second round, however, it has been observed that it is “already clear that French politics has changed,” as Fillon has “openly catered to the Catholic vote in a country where religious expres­sion in public is taboo” and nevertheless won the nomination of a major party in a striking upset.34

Hungary

Fidesz party leader and Hungarian Prime Minister Viktor Orbán has also polarized international public opinion due to his linking of Euroscepticism, national identity, and sovereignty with values rooted in Christian heritage and the natural family. A staunch anti-communist even during the dying days of the Marxist regime, Orbán was a pro-Western liberal democrat during the 1980s and 1990s, but following his return to a second stint at the premiership in 2010 in the wake of the global financial crisis, his modus operandi has reportedly become “an uncompromising defense of national sovereignty and a transparent dis­trust of Europe’s ruling elites.” This has been largely buoyed by socially conservative working-class voters and a disdain for the “corrupt values” of the European “liberal elites,” a continuation of the theme previously observed.35 Orbán has resoundingly won two parliamentary elections during his current term as Prime Minister.

Soon after his second victory in April 2014, Orbán laid out his best-known exposition of his political philosophy at a youth conference in Băile Tușnad, a small Romanian town populated largely by ethnic Hungarians, during which he stated that “the Hungarian nation is not simply a group of individuals but a community that must be organised, reinforced, and in fact constructed,” that while a non-liberal state should not reject liberalism’s fundamental principles like freedom, such an ideology should not be “the central element of state organisation,” and that values and institutions such as the family, national self-sufficiency, and cultural identity should form part of a “different, special, national approach.”36 To achieve this end, Fidesz family policy has focused on boosting birth rates, offering generous financial support to married cou­ples in return for their pledge to have at least three children and buy a flat or build a house, developing day-care facilities, channeling one billion euros per year into family tax allowances, and dedicating half a billion euros per year to family housing support schemes.37

Poland

To the north, Poland, once the poster child of the enthusiastic integra­tion of former Warsaw Pact countries into the EU, has marked out a dis­tinct trajectory for itself in recent years as well. Beginning in May 2015, when Law & Justice (Prawo i Spawiedliwość or PiS) presidential can­didate Andrzej Duda won a shock victory over popular pro-European incumbent Bronisław Komorowski, and further solidified in October of that same year by PiS winning its first ever parliamentary majority (and indeed the first parliamentary majority at all since the fall of com­munism), Poland’s relationship with the EU has taken a more Atlanticist geopolitical approach, opposing European federalization and holding that the EU should “benefit Poland and not the other way around.”38

Having moved away from an explicitly neoliberal and free-market economic approach, the party has adopted a social market economic model more in line with traditional Christian Democratic parties in Europe, emphasizing “social solidarity” and safety nets as the means to fulfill commitments to traditional values and the use of social policy to support the family.39 This has included tax decreases and rebates in line with number of children, the introduction of a system of state-guaran­teed housing loans, the building of large numbers of housing units for young couples considering marriage, and the expansion of maternity leave provisions.40 This has also emerged in the form of strong opposition to same-sex “marriage” and other forms of legal recognition for same-sex couples, sex education, public affirmation of non-traditional sexual behaviors and relationships, and in-vitro fertilization, as well as by way of renewed efforts to outlaw abortion for any reason other than to save the life of the pregnant woman. The government, however, pulled back on the latter issue after widespread “Black Monday” protests, encouraged by progressive international advocacy groups, took place on October 3, 2016 and the days thereafter.41

The Turning of the Tide

Despite the Polish government’s retreat on further limiting abortion, it is still the case that Hungary and Poland, and possibly Croatia, may together be signaling the beginning of a sea-change within the EU and in its relationship with the rest of the world. In December 2015, two draft regulations dealing with the settlement of property disputes by couples in marriages and civil partnerships across the EU, in line with the prin­ciple of freedom of movement, were rejected by the current Polish and Hungarian governments on the grounds that it conflicted with their domestic principles of family law.42

Hungary specifically marked out its position as being that “it is clear and obvious that traditions and values related to the family, as a basic ele­ment of society, is a part of national identity,” and even an author critical of the Polish and Hungarian position recognized that “what happened on December 3rd in the Council on Justice is a very clear sign [of] the fact that the EU is facing a [Eurosceptic] crisis, which threatens the very matter of its existence.”43 This opposition to an indirect recognition of same-sex “marriage” in the face of collective EU pressure “speaks vol­umes about the direction Poland and Hungary have chosen” but is not “the trajectory in which EU diplomacy, reliant on EU consensus, has taken so far”; it can only be hoped that smaller countries in Europe more socially aligned with Poland will be emboldened to form a stronger bloc behind their leadership.44

Three recent cases in the ECtHR, all of which featured Poland as the defendant, also led to the Court ruling that there is no right to divorce under Article 8 (respect for private and family life) and Article 12 (right to marry) of the ECHR.45 In light of this, as well as other cases in recent years which have denied the existence of an international human right to same-sex “marriage,” a weakening of CJEU jurisprudence via EU fractur­ing may turn more focus toward the Council of Europe and the ECtHR, which has a broader membership and even more diversity of views on these controversial issues, although it is by no means guaranteed that this will be unmitigatedly positive for the pro-family contingent.46 On the other hand, a case originating from Romania set to be heard by the CJEU may either bolster Member State sovereignty on the issue of defining marriage, or impose a genderless definition on all twenty-eight Member States.47 Should the latter occur, it will fall to more traditionally-minded EU nations to defend their understanding of marriage in the face of EU jurisprudence, which itself has the potential to bring on further and even more consequential division.

* * *

The resurgence of a commitment to national sovereignty and identity in opposition to globalism and further European integration has provoked numerous responses, positive and negative, cautious and enthusiastic. Value judgements aside, however, it has become undeniable that in the wake of a growing perception that the prevailing liberal order is unstable and unsustainable, a renewed interest in promoting traditional family values and policies has emerged on a wide scale. Whether the primary political actors currently appealing to these are, in doing so, sincere, cynical, or somewhere in between, it is imperative upon advocates of the natural family to seize the opportunity to influence the narrative, and as such to bring about lasting and genuine changes in direction on these issues, both in Europe and beyond. In the face of a growing grassroots demand for the support of strong and stable natural institutions, main­stream political forces in more nations would do well to return en masse to their ideological roots, and the obligation on States to protect and pro­mote the family as the natural and fundamental group unit of society, in order to avoid the cause becoming the exclusive domain of more radical movements on the political fringes.

Thomas A. Jagels serves as UN Representative for ADF International at its office in Geneva.


1. Article 33 of the Charter of Fundamental Rights of the European Union (CFREU) provides that “the family shall enjoy legal, economic, and social protection,” and that “everyone shall have the right to protection from dismissal for a reason connected with maternity and the right to paid maternity leave and to parental leave following the birth or adoption of a child.”

2. Article 5 TEU provides that “(1) The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality. (2) Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States. (3) Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level. The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol. (4) Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties. The institutions of the Union shall apply the principle of proportionality as laid down in the Protocol on the application of the principles of subsidiarity and proportionality.”

3. Constitution of the Republic of Bulgaria, Article 46(1); Constitution of Hungary, Article M(1); Constitution of the Republic of Latvia, Article 110; Constitution of the Republic of Lithuania, Article 38; Constitution of the Republic of Poland, Article 18; Constitution of the Slovak Republic, Article 43.

4. Norbert Demuth, “German court rejects case to allow gay adoption on technicality,” Reuters, February 21, 2014, available at http://www.reuters.com/article/us-germany-gayadoption-idUSBREA1K10T20140221 ; Verfassungsgerichtshof Österreich, “Press Release: Adoption ban for same-sex partners found unconstitutional,” January 14, 2015, available at https://www.vfgh.gv.at/downloads/spr_e_adoptionen_ep_presseinformation.pdf ; Prague Daily Monitor, “Government backs bill on adoption of children in same-sex couples,” October 25, 2016, available at http://www.praguemonitor.com/2016/10/25/govt-backs-bill-adoption-children-same-sex-couples ; On February 2, 2017, the Plenary Session of the European Parliament adopted a resolution with 533 votes in favor to 41 against calling upon the European Commission to require all EU countries to recognize each other’s adoption certificates automatically, which may have certain implications when it comes to adoptions by partners of the same sex, cf. European Parliament, “MEPs call for automatic cross-border recognition of adoptions,” February 2, 2017, available at http://www.europarl.europa.eu/news/en/news-room/20170131IPR60307/meps-call-for-automatic-cross-border-recognition-of-adoptions.

5. European Commission, “Special Eurobarometer 437: Discrimination in the EU in 2015 Report,” published October 2015, available at http://www.equineteurope.org/IMG/pdf/ebs_437_en.pdf , T247, last accessed February 3, 2017.

6. A/HRC/RES/17/19, Human Rights Council Resolution on human rights, sexual orientation and gender identity, adopted June 17, 2011, available at https://documents-dds-ny.un.org/doc/UNDOC/GEN/G11/148/76/PDF/G1114876.pdf ; A/HRC/RES/26/11, Human Rights Council Resolution on Protection of the Family, adopted June 26, 2014, available at https://documents-dds-ny.un.org/doc/UNDOC/GEN/G14/086/78/PDF/G1408678.pdf ; A/HRC/RES/27/32, Human Rights Council Resolution on human rights, sexual orientation and gender identity, adopted September 26, 2014, available at https://documents-dds-ny.un.org/doc/UNDOC/GEN/G14/177/32/PDF/G1417732.pdf ; A/HRC/RES/29/22, Human Rights Council Resolution on Protection of the Family: contribution of the family to the realization of the right to an adequate standard of living for its members, particularly through its role in poverty eradication and achieving sustainable development, adopted July 3, 2015, available at: https://documents-dds-ny.un.org/doc/UNDOC/GEN/G15/163/18/PDF/G1516318.pdf ; A/HRC/RES/32/2, Human Rights Council Resolution on protection against violence and discrimination based on sexual orientation and gender identity, adopted June 30, 2016, available at https://documents-dds-ny.un.org/doc/UNDOC/GEN/G16/154/15/PDF/G1615415.pdf ; A/HRC/RES/32/23, Human Rights Council Resolution on Protection of the Family: role of the family in supporting the protection and promotion of human rights of persons with disabilities, adopted July 1, 2016, available at https://documents-dds-ny.un.org/doc/UNDOC/GEN/G16/156/45/PDF/G1615645.pdf .

7. CJEU Maruko case (C-267/06) and Römer case (C-147/08).

8. Schalk and Kopf v. Austria (Application no. 30141/04), Decision of June 24, 2010; Oliari and Others v. Italy (Application nos. 18766/11 and 36030/11), Decision of July 21, 2015.

9. European Parliament, “European Parliament resolution of 4 February 2014 on the roadmap against homophobia and discrimination on grounds of sexual orientation and gender identity (2013/2183(INI)),” February 4, 2014, available at http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P7-TA-2014-0062&language=EN&ring=A7-2014-0009 .

10. Malta EU 2017, “High Level Ministerial Conference on LGBTIQ Road Map, 23-Feb-2017,” available at https://www.eu2017.mt/en/Events/Pages/High-Level-Ministerial-Conference-on-LGBTIQ-Road-Map.aspx , last accessed February 15, 2017; MaltaEU 2017, “The Maltese Priorities,” available at https://www.eu2017.mt/en/Pages/Maltese-Priorities.aspx , last accessed February 15, 2017.

11. European Parliament, “European Parliament resolution of 12 March 2015 on the Annual Report on Human Rights and Democracy in the World 2013 and the European Union’s policy on the matter (2014/2216(INI)),” March 12, 2015, available at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P8-TA-2015-0076+0+DOC+XML+V0//EN&language=EN

12. Council of the European Union, “Council conclusions on LGBTI equality,” June 16, 2016, available at http://www.consilium.europa.eu/en/press/press-releases/2016/06/16-epsco-conclusions-lgbti-equality/

13. European Commission, “‘We All Share the Same Dreams’ Awareness Raising Campaign: Social Media Toolkit,” last accessed February 13, 2017, available at: http://ec.europa.eu/justice/discrimination/files/shareyourdream_toolkit_en.pdf ; European Parliament, “Parliamentary Questions: Answer given by Ms. Jourová on behalf of the Commission,” June 15, 2016, available at: http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2016-002111&language=EN ; In response to questions about this, Věra Jourová, European Commissioner for Justice, Consumers and Gender Equality responded on behalf of the Commission that: “The European Union is founded on the values of respect for equality and human rights according to Article 2 of the Treaty on the European Union. The Commission promotes these values through specific campaigns and communication activities. The list of actions by the Commission to advance Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) equality addresses specifically the discrimination on the basis of sexual orientation. The sponsoring of a boat at the Europride 2016 is part of the awareness raising activities for equality, financed by the EU budget under the Rights, Equality and Citizenship Programme, agreed to by the European Parliament and the Council. In line with the wishes of the European Parliament and the Council, these activities include awareness raising for Lesbian, Gay, Bisexual, Transgender and Intersex. A budget of EUR 24,000 has been allocated to this activity. All the practicalities and organisational arrangements related to the parade are run by an external contractor whose work is thoroughly supervised by the Commission.”

14. Franz Timmermans, “Keynote speech of First Vice-President Frans Timmermans at the Equality Gala, organized by ILGA-Europe, Brussels (transcript),” European Commission, June 24, 2015, available at: https://ec.europa.eu/commission/2014-2019/timmermans/announcements/keynote-speech-first-vice-president-frans-timmermans-equality-gala-organized-ilga-europe-brussels_en

15. Article 245 TEU: “Members of the Commission shall refrain from any action incompatible with their duties. Member States shall respect their independence and shall not seek to influence them in the performance of their tasks”; Article 17 TFEU: “The members of the Commission shall be chosen on the ground of their general competence and European commitment from persons whose independence is beyond doubt. In carrying out its responsibilities, the Commission shall be completely independent. Without prejudice to Article 9 E(2), the members of the Commission shall neither seek nor take instructions from any Government or other institution, body, office or entity. They shall refrain from any action incompatible with their duties or the performance of their tasks.”

16. European Dignity Watch, “Commission VP Timmermans mocks neutrality duty by siding with LGBT Lobby,” July 17, 2015, available at http://europeandignitywatch.org/day-to-day/detail/article/commission-vp-timmermans-mocks-neutrality-duty-by-siding-with-lgbt-lobby.html

17. BBC News, “Croatia to hold referendum on same-sex marriage ban,” November 8, 2013, available at http://www.bbc.com/news/world-europe-24873498 .

18. Ibid.; Rosana Stojmenović, “Josipović: Ovaj referendum već ima jak psihološki,” 24sata, December 1, 2013, available at http://www.24sata.hr/news/josipovic-ovaj-referendum-vec-ima-jak-psiholoski-efekt-343447 .

19. European Dignity Watch, “FRA’s big lie on ‘homophobia’ challenged at the European Council,” October 29, 2014, available at http://europeandignitywatch.org/pl/codzienny/detail/article/fras-big-lie-on-homophobia-challenged-at-the-european-council.html

20. Vedran Pavlic, “Election Debate: Plenković—Milanović,” Total Croatia News, August 12, 2016, available at http://www.total-croatia-news.com/item/13566-debate-plenkovic-milanovic

21. BBC News, “Slovenia rejects gay marriage in referendum,” December 20, 2015, available at http://www.bbc.com/news/world-europe-35147257.

22. BBC News, “Slovakia referendum to strengthen same-sex marriage ban fails,” February 8, 2015, available at http://www.bbc.com/news/world-europe-31170464

23. Monika Tódová, “Iveta Radičová: I worry that all we will be left with is filth,” Visegrad Revue, February 6, 2015, available at http://visegradrevue.eu/iveta-radicova-i-worry-that-all-we-will-be-left-with-is-filth/

24. In light of the recent election of Donald Trump as President of the United States off the back of a populist surge in formerly Democratic strongholds populated by working-class voters, and the shocked and stunned response from left-wing figures and commentators which followed, this may be a phenomenon not unrecognizable to observers in the United States.

25. BBC News, “Liam Fox: Gay marriage plans ‘divisive and wrong,’” January 10, 2013, available at http://www.bbc.com/news/uk-politics-20977765 ; Jessica Elgot & Peter Walker, “Stephen Crabb and Liam Fox launch Tory leadership campaigns,” The Guardian, June 29, 2016, available at https://www.theguardian.com/politics/2016/jun/29/stephen-crabb-conservatives-defends-opposition-to-gay-marriage ; Belfast Telegraph, “Andrea Leadsom: I didn’t like gay marriage law because it hurts Christians, admits Tory contender to be PM,” July 7, 2016, available at: http:// www.belfasttelegraph.co.uk/news/politics/andrea-leadsom-i-didnt-like-gay-marriage-law-because-it-hurts-christians-admits-tory-contender-to-be-pm-34865088.html

26. Oliver Wright, “Philip Hammond breaks ranks on gay marriage,” The Independent, May 18, 2013, available at http://www.independent.co.uk/news/uk/politics/philip-hammond-breaks-ranks-on-gay-marriage-8621928.html ; Hull Daily Mail, “MP criticizes gay marriage plan,” December 18, 2012, available at http://www.hulldailymail.co.uk/mp-criticises-gay-marriage-plan/story-17619046-detail/story.html

27. John Lichfield, “France: Huge gay marriage protest turns violent in Paris,” The Independent, May 26, 2013, available at http://www.independent.co.uk/news/world/europe/france-huge-gay-marriage-protest-turns-violent-in-paris-8632878.html .

28. France 24, “Anti-gay marriage protesters return to streets of Paris,” October 17, 2016, available at http://www.france24.com/en/20161016-anti-gay-marriage-protesters-hit-streets-paris .

29. In January 2017, it was alleged in French satirical newspaper Le Canard enchaîné that Fillon had used taxpayer funds to fraudulently engage his wife and children in fictitious employment. Although Fillon has denied any financial misconduct or illegal activity, his polling numbers have declined, and he pledged to end his candidacy if formal charges are brought against him (but has since reversed that stance as the investigation against him has ramped up, labelling it an attempt at “political assassination”). As of early March 2017, however, he is still in the race and remains relatively competitive against centrist Emmanuel Macron for second place in the first round of the presidential election, with some commentators maintaining that his long-term odds are still better than even; cf. Pascal Emmanuel Gobry, “Can François Fillon survive?” The Week, February 10, 2017, available at: https://theweek.com/articles/679039/francois-fillon-survive.

30. Tom Parfitt, “Vladimir Putin calls on Russian families to have three children,” The Telegraph, December 12, 2012, available at http://www.telegraph.co.uk/news/worldnews/vladimir-putin/9739678/Vladimir-Putin-calls-on-Russian-families-to-have-three-children.html ; Justin Palmer, “Russia’s anti-gay law an ‘invented problem’: minister,” Chicago Tribune, August 18, 2013, available at: http://articles.chicagotribune.com/2013-08-18/sports/sns-rt-us-athletics-world-gay-20130818_1_sochi-russian-black-sea-athletes; Reuters, “Le Pen says ‘world peace’ would gain from a Trump-Putin-Le Pen trio,” November 16, 2016, available at http://www.reuters.com/article/us-france-election-le-pen-idUSKBN13B230 ; Helene Fouquet & Gregory Viscusi, “Fillon Gives Putin Hope for New Ally as Sanctions Zeal Fades,” Bloomberg, November 29, 2016, available at https://www.bloomberg.com/news/articles/2016-11-29/fillon-win-gives-putin-hope-for-new-ally-as-sanctions-zeal-fades

31. David Joseph-Goteiner, “The Decline of Modernity and Rise of Traditionalism in France,” Prospect Journal of International Affairs at USCD, May 11, 2012, available at: https://prospectjournal.org/2012/05/11/the-decline-of-modernity-and-rise-of-traditionalism-in-france/

32. James McAuley, “François Fillon, France’s conservative front-runner, promises the return of the traditional right,” The Washington Post, November 23, 2016, available at https://www.washingtonpost.com/world/francois-fillon-frances-conservative-front-runner-promises-the-return-of-the-traditional-right/2016/11/22/a528a252-b0bd-11e6-bc2d-19b3d759cfe7_story.html

33. Ibid.

34. Pascal-Emmanuel Gobry, “How François Fillon scrambled the French election,” The Week, November 29, 2016, available at https://theweek.com/articles/664190/how-francois-fillon-scrambled-french-election .

35. Luke Waller, “Viktor Orbán: The Conservative Subversive,” Politico, available at

http://www.politico.eu/list/politico-28/viktor-orban/ , last accessed February 3, 2017.

36. Viktor Orbán, “Prime Minister Viktor Orbán’s Speech at the 25th Bálványos Summer Free University and Student Camp,” Website of the Hungarian Government, July 30, 2014, available at http://www.kormany.hu/en/the-prime-minister/the-prime-minister-s-speeches/prime-minister-viktor-orban-s-speech-at-the-25th-balvanyos-summer-free-university-and-student-camp .

37. Euronews, “Hungary leads way in EU family policy, but motives suspect,” May 27, 2016, available at http://www.euronews.com/2016/05/27/hungary-leads-way-in-eu-family-policy-but-motives-suspect .

38. Michaela Maier and Jens Tenscher, Campaigning in Europe—Campaigning for Europe (Münster: LIT Verlag Münster, 2004), 374; Ronald Tiersky and Erik Jones, Europe Today: A Twenty-first Century Introduction (Lanham: Rowman & Littlefield, 2007), 392.

39. Tim Bale & Aleks Szczerbiak, “SEI Working Paper No 91: Why is there no Christian Democracy in Poland (and why does this matter)?” Sussex European Institute, University of Sussex, published December 2006, 19-20, 42, available at https://www.sussex.ac.uk/webteam/gateway/file.php?name=sei-working-paper-no-91.pdf&site=266 .

40. BBC News, “Poland elections: Law and Justice party can govern alone,” October 27, 2015, available at http://www.bbc.com/news/world-europe-34648575 ; Christian Niles, “Poland paying families to have more babies,” Church Militant, December 1, 2015, available at http://www.churchmilitant.com/news/article/poland-paying-families-to-have-more-babies ; Lorenzo Berardi, “The Family 500+: Poland’s new child benefit programme,” New Eastern Europe, March 3, 2016, available at http://neweasterneurope.eu/articles-and-commentary/1909-the-family-500-poland-s-new-child-benefit-programme .

41. Lydia Smith, “Poland: The hard-right Law and Justice Party is destroying the few LGBT rights that exist,” International Business Times, June 11, 2016, available at http://www.ibtimes.co.uk/poland-hard-right-law-justice-party-destroying-few-lgbt-rights-that-exist-1564620 ; Rick Lyman and Joanna Berendt, “As Poland Lurches to Right, Many in Europe Look On in Alarm,” The New York Times, December 14, 2015, available at https://www.nytimes.com/2015/12/15/world/europe/poland-law-and-justice-party-jaroslaw-kaczynski.html ; BBC News, “Black Monday: Polish women strike against abortion ban,” October 3, 2016, available at http://www.bbc.com/news/world-europe-37540139.

42. Stefano Gennarini, “Poland and Hungary May Break EU Bloc at UN on Gay Rights and Much More,” Center for Family & Human Rights, December 17, 2015, available at https://c-fam.org/friday_fax/poland-hungary-may-break-eu-bloc-un-gay-rights-much/ ; Adelina Marini, “Poland and Hungary Blocked EU,” euinside, December 8, 2015, available at http://www.euinside.eu/en/news/poland-and-hungary-blocked-eu-on-matrimonial-property-regimes  

43. Marini, “Poland and Hungary Blocked EU.”

44. Gennarini, “Poland and Hungary May Break EU Bloc at UN on Gay Rights and Much More.”

45. Gajewski v. Poland (Application no. 8951/11) Decision of December 15, 2016; Piotrowski v. Poland (Application no. 8923/12) Decision of December 15, 2016; Babiarz v. Poland (Application no. 1955/10) Judgement of January 10, 2016.

46. Schalk and Kopf v. Austria (Application no. 30141/04), Decision of June 24, 2010; Chapin and Charpentier v. France (Application no. 40183/07), Decision of June 9, 2016. Compare, however, with Oliari and Others v. Italy (Application nos. 18766/11 and 36030/11), Decision of July 21, 2015, which did establish a positive obligation on States to provide for some form of legal recognition of same-sex couples, though not marriage.

47. ILGA-Europe, “Definitive answer within reach for same-sex couple seeking recognition in Romania,” November 29, 2016, available at http://www.ilga-europe.org/resources/news/latest-news/definitive-answer-within-reach-same-sex-couple-Romania ; for more extensive detail on this case, cf. Adina Portaru, “Marriage at a Crossroads in Romania,” The Natural Family: An International Journal of Research and Policy 31.1 (2017): 29-40.

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