Some More Equal Than Others? Matrimonial Benefits and the CJEU's Case Law on Discrimination on the Grounds of Sexual Orientation

Abstract

This article discusses the recent case law of the Court of Justice of the European Union (CJEU) dealing with discrimination on the grounds of sexual orientation in relation to matrimonial benefits. It argues that the Court, by focusing on direct discrimination and by separating sex and sexuality, upholds the normative value of marriage, and consequently reinforces the traditional hetero-normative ideal of the nuclear family which privileges dependencies and gender roles. This should be criticized because the hetero-normative ideal continues to privilege the normative society which is detrimental for homosexuals as well as women. If European non-discrimination law aims at fostering equality within diversity, the Court needs to refrain from focusing on similarities and avoid making essential certain characteristics such as sex and sexuality. Instead it should evaluate the cases under indirect discrimination which are more sensitive to structural or social differences and therefore are better suited to foster equality despite differences.