EU Court pries open National Law on Same-Sex Marriage: Judicial Humiliation of Democracy?

The recent ruling by the European Court of Justice (ECJ) regarding the compulsory recognition of same-sex marriages performed in one member state by all others has ignited a fierce debate across the continent. While proponents hail the decision as a victory for the freedom of movement and anti-discrimination principles, critics argue it represents yet another instance of judicial overreach, effectively circumventing national democratic processes and imposing a legal standard on sovereign states that their citizens, through their elected representatives, have rejected.

This decision, stemming from a seemingly localized Polish case, has transformed into a powerful legal crowbar capable of prying open the national laws of recalcitrant EU members.

The “Trojan Horse” of legal harmonization

The controversy centers on the case of Mr. Jakub Cupriak (a Polish-German dual citizen) and Mr. Mateusz Trojan (a Polish citizen), who legally married in Berlin, Germany, in 2018. Upon returning to Poland, where same-sex marriage is not recognized, their application to register the union was repeatedly rejected by local authorities, which maintained that Polish law limits matrimony to a union between a man and a woman. This domestic legal battle eventually led to a request for a preliminary ruling from the Polish Supreme Administrative Court to the ECJ in Luxembourg.

The ECJ ruled that a member state is obligated to recognize a same-sex marriage legally contracted in another member state in which the couple exercised their right to free movement and residence.

The Court’s Rationale

The core of the ECJ’s argument rests on the fundamental principles of Union citizenship and the freedom of movement. The judges, recognizing the “right to a normal family life” , determined that failing to recognize the marriage severely restricts this freedom for the EU citizens involved.

Crucially, the Court clarified that this obligation does not compel the member state to legalize same-sex marriage domestically (a competence reserved for national governments), but only to perform the administrative task of transcription or registration.

Poland’s argument—that recognizing the registration would implicitly violate its national constitutional definition of marriage—was overridden by the ECJ, using the framework of the Charter of Fundamental Rights and the 2004 EU Directive on Free Movement. In essence, the ruling establishes a sort of legal forced entry: individual member states retain formal sovereignty over their own laws, but a single foreign judicial action (a marriage certificate) effectively creates a legal reality that the national legislature explicitly sought to prevent.

Sovereignty undermined: judicial activism or necessary integration?

The implications of this ruling extend far beyond Poland and the immediate couple. It creates a legal domino effect across the EU: if just one member state (like Germany, France, or Spain) legally recognizes same-sex marriage, then every other state is now obligated to afford it legal recognition under the guise of free movement rights.

This outcome immediately drew strong reactions from political conservatives who view it as a direct assault on the principle of limited sovereignty in matters of family law and national identity.

Paolo Inselvini, an Italian MEP from Fratelli d’Italia, expressed his “dismay” and argued that the ruling “risks forcing the hand of national legal systems” on family matters, an area the Treaties supposedly reserve for the exclusive competence of member states. Critics highlight the irony that when a pro-family policy is requested from the EU, the response is often that the matter is outside EU competence; yet, the ECJ readily imposes new definitions of family via judicial fiat.

Corrado Ocone in Libero framed the decision as a “wrong move in both method and substance” , arguing that the Court is mortifying the very diversity upon which Europe’s centuries-old identity as a “land of liberties” was built. This attempt to impose a form of “single thought” through legal mechanisms is seen as fundamentally betraying the spirit of European unity, famously summarized by the Latin phrase e pluribus unum—out of many, one.

The underlying fear is not merely about same-sex marriage, but about the precedent set by using an economic principle—free movement—to override and redefine deeply held social and cultural norms safeguarded by national law. The specter of further “progressive” mandates is raised, with critics wondering aloud if the same principle would eventually force all member states to recognize legally contracted polygamous unions, were a single EU country to permit them.

The Domestic Fallout in Italy and the US Echo

In Italy, a country that recognizes same-sex civil unions but not full marriage, the ECJ’s decision was immediately seized upon by the left-wing opposition. Alessandro Zan, a Democratic Party MEP, declared it a “slap” to governments opposing LGBTQIA+ rights and immediately called on Italy to introduce equal marriage. Meanwhile, Senator Ivan Scalfarotto of Italia Viva recalled his dormant bill to introduce same-sex marriage in Italy, suggesting the time for bipartisan approval had arrived.

This mirrors a broader trend where judicial bodies are increasingly seen as the primary vehicle for achieving progressive social change when legislative efforts stall. Whether one views this as the judiciary upholding rights against a sluggish political class or as a judicial coup d’état against the electorate, the political temperature has clearly risen. The sentiment of “limited sovereignty” as defined by the ECJ feels like a continuous judicial humiliation of parliamentary democracy, making the votes of citizens in certain member states virtually irrelevant once a single “progressive” nation sets a new legal boundary.

Questions and Answers

Is the ECJ decision applicable to all EU countries, even those that do not recognize same-sex marriage?

Yes. The ECJ ruled that all EU member states are obligated to recognize same-sex marriages legally contracted in another member state, specifically when the couple exercised their right to free movement. This obligation applies even if the country’s national law does not permit same-sex marriage, though the ECJ specified that the country is not compelled to change its laws to introduce it, but merely to register the foreign union for free movement purposes.

What legal principle did the European Court of Justice base its decision on?

The decision is primarily rooted in the fundamental rights of Union citizenship and the freedom of movement and residence within the territory of the member states, as enshrined in the Charter of Fundamental Rights and the 2004 EU Directive on free movement. The Court views the non-recognition of a legally contracted marriage as an undue restriction on the couple’s right to pursue a “normal family life” upon returning to their home country.

How do critics view the distinction between “recognition” and “legalization” in the ECJ’s ruling?

Critics, particularly conservatives, see the distinction as mere legal sophistry or a “legal forced entry”. While the letter of the law remains untouched, the practical effect is the imposition of a legal reality (recognition of the marriage) that circumvents the democratic will of the national parliament and constitution. They argue that this mechanism effectively uses the free movement framework as a judicial tool to achieve social engineering, undermining national sovereignty in sensitive areas like family law.