Will European Court impose the legal recognition of sodo-“marriage” all over Europe?

914192439_b979048068z-1_20160625200647_000_g5173f5oh-1-0.jpgIt is strange to see how the powerful institutions of the EU just don’t seem to get the message. At a time where attitudes towards the EU are increasingly critical, if not hostile, in growing swathes of the population, the political and judicial elites act as if that were nothing to concern them. Subsidiarity is over, cultural imperialism holds sway.

A case in point is the issue of sodo-“marriage”, i.e. the mockery of marriage by sexual perverts, which has become legal in some Member States while it is clearly rejected by others. One might assume that in such a situation, if it does not want to simply defend the position that used to be the common ground among all civilised nations before some decadent countries like the Netherlands or Belgium started to call it into question as late as in the early Two-Thousands, the European Union should at least remain neutral, leaving Member States free to accept or reject this aberrant political fashion. But instead the EU takes side – of course for perversion and against decency. It does so without a proper political mandate, and in fact against its own foundational texts. Is anyone really believing that this will not provide further fuel to EU-scepticism?

In the Coman case currently pending before the Court of Justice of the EU, Advocate General Melchior Wathelet has issued a Legal Opinion which, if followed, would de facto oblige all EU Member States – including those who have constitutional provisions that rule out the arbitrary re-definition of marriage – to give a (perhaps limited) legal effect to “marriages” between same-sex sodomites.

Wathelet is notorious for the fact that as a Belgian Minister of Justice he “encouraged the early release of many sex offenders, which included Marc Dutroux, a convicted child molester and subsequent serial killer.”He was even accused of being himself part the pedophile network that Dutroux catered for. At the time, this resulted in the European Parliament calling for his resignation – but apparently it was not sufficient to prevent him from subsequently making a career at the CJEU.

With these antecedents, Mr. Wathelet’s generally positive attitude towards sodomy are perhaps not all that surprising.

His reasoning in the Coman case is, however, circular and self-contradictory: on the one hand, it affirms that the term “spouse” in EU law has an “autonomous” meaning, independent of the meaning it has within the context of Member States’ legislation. But on the other hand, it relies precisely on the social and legislative developments in some, but not all, Member States: while at the end of the year 2004 only two Member States allowed marriage between persons of the same sex, 11 more Member States have since amended their legislation to that effect and same-sex marriage will be possible in Austria too, by 1 January 2019 at the latest. Therefore, the solution adopted by the Court in the judgment of 31 May 2001, D and Sweden v Council (C‑122/99 P and C‑125/99 P, EU:C:2001:304), by which ‘according to the definition generally accepted by the Member States, the term marriage means a union between persons of the opposite sex’, now seems to me outdated.”

It apparently does not occur to Mr. Wathelet’s confused mind that the difference lies precisely in the fact that all Member States accept, and none deny, that a marriage can be concluded by two persons of different sex, whereas by contrast the notion of same-sex “marriage” is not accepted by a majority of Member States. Therefore, same-sex “marriage” is not part of any generally accepted definition. It was of course even less so when Directive  2004/38, which is in the focus of his interpretive efforts, was adopted, because at that time only two Member States accepted sodo-“marriage”. But apparently Wathelet is one of those lawyers who think that laws simply change their meaning, even if they are themselves not changed.

It is also conspicuous that Mr. Wathelet is very selective in quoting from the ECtHR’s case law: he attaches great importance to the fact that the ECtHR, in what actually was a mere obiter dictum, claimed that a homosexual relationship could constitute “family life” in the sense of Article 8 of the ECHR, but fails to mention that in the very same ECtHR decision from which this quotation is drawn the actual outcome – much closer to the nub of the matter, which is the meaning of the word “spouse” – was that the term “marriage” is limited to the marriage between a man and a woman. Not mentioning this important fact of course spares him the effort of having to deal with the apparent self-contradiction in the ECtHR’s findings – but at the same times it undermines the credibility of his own reasoning: you either quote the ECtHR’s case-law in its integral context (and if you do, you must give greater weight to the Court’s actual decision than to  some obiter dicta), or you don’t quote it at all. Mr. Wathelet’s way of handling the ECtHR case law is simply dishonest and falls below the standards of proper judicial interpretation.

We must therefore expect to soon see the CJEU carry out yet another judicial putsch in favour of the sodomite agenda, very similar to the US Supreme Court’s Obergefell case or – more recently, and a first-comer in Europe, the Austrian Constitutional Court’s utterly bizarre decision to re-define marriage.

Mr. Wathelet insists that the case is “limited (to the) context of freedom of movement of citizens of the European Union”, and thus would not necessarily imply an obligation for Romania to legislate for sodo-“marriage”, but only to let yet one sodomite more enter the country. But if something seems “artificial”, it is precisely that distinction.

A judicial putsch, which in this case would be provocatively contrary to the true beliefs of the citizens in the Member State concerned, is, however, unlikely to foster new enthusiasm for the European project. As readers of this blog will remember, a citizens’ initiative has collected 3 million authenthicated signatures from Romanian citizens within less than a month in order to get the definition of marriage (as between one man and one woman) protected through a constitutional provision. Since then, the Romanian Parliament, put under enormous pressure by the EU and its institution, is dragging its feet to hold the necessary referendum which, if allowed to take place, would overwhelmingly confirm the petition. Once again, the EU is seen to play around with democracy.