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EU Agency Calls for a Re-definition of Marriage, Criminalization of "Homophobia"

By Maciej Golubiewski

BRUSSELS, August 21, 2008 (C-FAM) - A recent report from the Fundamental Rights Agency (FRA) of the European Union (EU) has called for binding EU regulations that would equalize the legal status of married heterosexual couples with that of same-sex and opposite-sex couples across Europe.  It also recommends policies aimed at "promoting visibility of homosexuality and other gender identities" and criminalizing homophobia through "hate crime" legislation.

FRA contracted writing of the report to a group called FRALEX.  FRALEX is roughly the same group as the now defunct EU "network of independent fundamental rights experts," a group that was widely criticized for trying to get the government of Slovakia to abrogate a treaty with the Vatican that provided conscience protection for doctors unwilling to carry out abortions. 

The European Parliament requested FRA's opinion in drafting a new EU law, called a directive that would prohibit discrimination based on "sexual orientation" in employment, education, social security, health care, and access to goods and services.  Current EU laws extend that kind of protection only in the area of employment, leaving other areas to be treated in national legislation.

The 165-page report goes beyond examining the proposed directive and contains analysis of all possible aspects of EU and national laws that possibly discriminate against homosexuals.  Areas include employment, freedom of movement, asylum, family reunification, freedom of assembly, and criminal law. 

The report argues that EU law should force member states, in which there is no registered-partnership or "gay marriage" legislation, to treat people in these arrangements as married couples.  Currently, the EU allows citizens of the EU and their family members to move and reside freely anywhere in the EU.  The EU also allows third-country nationals who are spouses of EU citizens to reside legally in the EU.  Both of these regulations refer to marriage in the traditional sense, although they allow exceptions when the move or reunification happens between countries that recognize other forms of relationships as equivalent to marriage.

The extension of marital privileges to same-sex and cohabiting opposite-sex couples is justified in the report by reference to the EU's "fundamental principle" of "equal treatment." Yet, the definition of same-sex and opposite-sex couples is not precisely defined in the text.  The authors refer to "stable and permanent relationships" or "de facto durable relationships" or relationships with "a sufficient degree of permanency." Arguably, only couples involved in a sexual relationship would benefit from the proposed extension of current EU regulations.  The report does not contain any prescriptions of how governments might attest to and discern such relationships.

Other parts of the report call for mandatory national "equality bodies," preferably with independent units dealing only with homosexual issues.  It argues for endowing them with "quasi-adjudicatory functions" that would allow them to issue "binding sanctions or orders, subject to review by courts." It also argues for a sweeping EU regulation that would make "homophobic hate speech a criminal offense."

Maciej Brachowicz, a human rights expert from Poland-based Jegiellonian Club, told the Friday Fax that "if one were to agree with FRA's opinion, there are barely any legal grounds left for claiming that any inequality in social life should not be treated as discriminatory."

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