The CJEU’s abusive decision on the “right to free movement” of sodomite couples

The CJEU’s decision in the Coman case is out, and as some rumours in the last weeks already indicated, it is yet another case in which a judicial authority is cheekily abusing the powers conferred to it in order to promote a highly controversial agenda for which the EU has no mandate. The trick is always the same: take a legal provision that was adopted years ago and give it a temerarious new interpretation of which no serious-minded person will ever believe that it was intended when the text was drafted.

As our readers will remember, the first and foremost question submitted by the Romanian Constitutional Court was the following:

Does the term “spouse” in Article 2(2)(a) of Directive 2004/38, read in the light of Articles 7, 9, 21 and 45 of the Charter, include the same-sex spouse, from a State which is not a Member State of the European Union, of a citizen of the European Union to whom that citizen is lawfully married in accordance with the law of a Member State other than the host Member State?

We all know that the obvious answer must be NO, given that marriage and family fall within the exclusive competence of Member States and that the EU can, according to Article 81.3 of the TFEU, only legislate on these matters by unanimity. Yet it is completely obvious that Member States were not unanimous back in 2004, and are not unanimous now, in accepting the bizarre, anthropologically unfounded, and morally divisive concept of same-sex “marriages”. Had the Member States intended to adopt a uniform definition of the term “spouse”, in particular one that would oblige them to give legal effects to an absolute novelty such as sodo-“marriages”, they would have had to insert a precise definition of that term in Directive 2004/38, and they would have had to adopt the Directive through a special procedure, referencing Article 81.3 in the preamble. None of which is the case.

How can it then reasonably be claimed that the term “spouse” includes sodo-“spouses” with whom no marriage could be concluded inside the receiving country?

The CJEU’s judgment is based on a brazen and cynical lie, and will further undermine what little trust citizens still have in the EU and its institutions. It is the first time in the Court’s history that it is difficult to believe in the good faith of the judges who made the decision.

The Court asserts, however, that this judgment to obliges Member States “to recognise a marriage between persons of the same sex concluded in another Member State in accordance with the law of that state for the sole purpose of granting a derived right of residence to a third-country national”. It is claimed that this “does not undermine the institution of marriage in the first Member State, which is defined by national law and falls within the competence of the Member States. Such recognition does not require that Member State to provide, in its national law, for the institution of marriage between persons of the same sex. It is confined to the obligation to recognise such marriages, concluded in another Member State in accordance with the law of that state, for the sole purpose of enabling such persons to exercise the rights they enjoy under EU law.”

If this assertion is to be believed, the initial impact of this decision will be limited. However, it might soon be considerably widened when the first Member States begin recognizing polygamous marriages and family relationships (there is a recent decision of the German Federal Administrative Court allowing a “refugee” from an Islamic country to bring along his two “spouses”…).

Also, one has to wonder whether this is not intended to be the first in a series of decisions that will oblige Member States to legally recognize the sodomite mockery of marriage “solely for the purpose of…(insert whatever you want)”, thus rendering the domestic public order utterly meaningless.

In the end, for reasons of so-called “consistency”, the Court will of course set aside all the limitations with which it tries to make the Coman judgment palatable, and attempt to force the sodo-“marriage” ideology on all Meber States. That’s the usual tactics. The question is whether the EU will stand long enough.

With its brazen diserespect for the public order of sovereign Member States, this decision in fact stands in blatant contradiction to one of the very basic tenets of international law. Indeed, the Court makes the truly astounding claim – for the very first time in the EU’s history! – that it is not bound to respect the public order of a Member State. This is cultural imperialism in its most extreme form.

In the long term, the decision undermines the trust both in the legal text that are being negotiated and in the judicial institutions interpreting them. As a result, Member States will become increasingly hesitant to adopt new legislation – and if they do so, they will insist on inserting very clear definitions to limit the possibility of aberrant subsequent interpretations by activist judges.