An eight-year struggle
Jakub Cupriak-Trojan and Mateusz Trojan became the first couple whose marriage was registered. It was their case that was decided by the Court of Justice of the EU. They got married in Berlin on June 6, 2018. The transcription of the marriage certificate and the change of surname took almost eight years. In the meantime, the couple appealed to the Warsaw Registry Office, the Duchy of Mazovia, the Duchy Administrative Court in Warsaw and the Polish Supreme Administrative Court.
It certainly cannot be considered a victory that they had to fight for so long to fulfill one of their fundamental rights. Nor is it a win that the country’s prime minister has to call on officials to respect someone’s basic rights and thus comply not only with the decision of the EU’s highest judicial body, but also with their own domestic administrative court.
Although Poles are now assured that their marriages from abroad will be recognized at least in Warsaw, they should not be forced to travel from all over the country to do so just for fear that officials elsewhere will not act in accordance with the law. Begging public authorities to treat you with dignity is in itself undignified.
And now we are not only talking about Poland. “PS wants to force gay marriages on us. Fraudulently through the EU, against our will,” Milan Krajniak, chairman of the Conservatives – Christian Union party, was outraged on Facebook. To the status, he attached a photo from the wedding of the member of Progressive Slovakia, Michal Saba, who recently married his partner Michal Šefčík in Austria and wants recognition of his union here as well.
We should welcome the lawsuit
“Progressives know very well that no Slovak authority can recognize this wedding. They do it only so that they can sue the Slovak Republic at the Court of Justice of the EU in Luxembourg. So that through the Court of Justice of the EU they can force the whole of Slovakia to recognize their idea of marriage against the will of the majority of citizens,” says the former Minister of Labor.
It is difficult to say whether any Slovak authority could really recognize such a decision. If the circumstances were the same as in the Polish case, it should be just the opposite. After all, the Court of Justice of the EU interpreted EU law, which also applies to Slovakia, its interpretation is binding and takes precedence over national law.
Finally, the court also stated in this decision that the articles of the Charter of Fundamental Rights of the EU and the Treaty on the Functioning of the EU prevent the use of national legislation in such a case. This is not a scam, but a basic rule of European Union law. However, Krajniak is probably right that an ordinary clerk at the registry office will not directly apply the judgments of the Court of Justice of the EU.
He might risk it if it were an identical situation and the married couple lived together in another Member State and only then got married there. However, Sabo and Šefčík live in Slovakia, so they did not lead their joint private and family life abroad, and they are not moving back to continue it. It would therefore be very useful for them to actually go to court. They would do a service to the state and the public.
At least it would be clear whether this judgment also applies to couples who just got married abroad. Although the Court of Justice says that married and family life begins or deepens mainly with the conclusion of marriage, Sabo’s case is different from the case of the Trojan spouses, who actually lived in Germany. We should all welcome such a lawsuit if only for the principle of legal certainty, so that our national authorities know how to proceed.
However, we remind Milan Krajniak that the Polish couple did not sue their country in Luxembourg. That’s not even possible. A Polish court turned to the Court of Justice of the EU with a preliminary question in order to know how to apply EU law. Let’s believe that our court will do the same, if it really decides on Sabo’s case.
If it turns out that we have to recognize such a marriage, it would only be a confirmation that the judgment from November also applies to us. If conservatives fear this, they know that Slovakia does not comply with European law. But if the court said that the directive on free movement and residence does not apply to such marriages, because Sabo and Šefčík traveled only for the purpose of getting married, we would not have to do anything and Milan Krajniak would be happy.
Human rights are communism
“They don’t want tolerance. They want us all to have to accept their idea of the world, their idea of values, their idea of the family. This is exactly how the communists behaved before 1989,” Krajniak is angry. Ah, yes, the old familiar classic: everything else is an imposed ideology, only conservatism is normality. Everyone else has opinions, only conservatives are right.
According to Krajniak, recognizing a conservative idea of the world as the only valid one is tolerance. When a liberal demands respect for his values, he is a swindler against the will of the majority, communism and an ideological dictatorship. For free, the European Court of Human Rights made it clear that the exercise of minority rights cannot be conditional on the acceptance of the majority, because these rights would be only theoretical.
It doesn’t bother Krajniak. After all, some basic human rights must not stand in the way of the only correct, i.e. conservative worldview. At the same time, conservatives should be the first to rejoice at the decision of the Court of Justice of the EU on the recognition of same-sex marriages. And we mean it. There is no question of forcing marriages.
Just follow the Bible
“The very recognition of the effects of a foreign decision on the national identity, strictly speaking, does not interfere in any way and perhaps rather emphasizes its uniqueness,” constitutional lawyer and former politician Radoslav Procházka, who really cannot be accused of being a liberal, said about the judgment of the Luxembourg court in November. According to him, the conservative elements of the Slovak constitution will rather strengthen it.
“Because if you have to be ordered by the Union to change your own legal practice just and only in such a way that you recognize foreign marriages, even if they were concluded by persons of the same sex, but you keep domestic marriages exclusively between a man and a woman, then it follows that you have a different constitutional identity and you are only doing what is necessary for the purpose of securing practical needs in the exercise of the right to freedom of movement and residence,” Procházka claims.
Moreover, he reminds that, for example, France, as a secular state, does not recognize marriages concluded before a church authority as valid. However, it will recognize the church marriages of our citizens, despite the fact that there is a strict separation of church and state. Of course, we know that it is not quite the same, because in international law there is a so-called public order reservation.
It allows states to refuse the application of a foreign legal order due to the protection of their own values. However, if the conservatives do not mind that France respects their values and recognizes our church marriages because they do not threaten its constitutional identity, they should show the same generosity to others even without the Luxembourg judgment. As Radoslav Procházka wrote, this decision does not violate our constitutional identity.
“Everything you want people to do to you, do to them. For that is the Law and the Prophets,” says the book, which Milan Krajniak might be familiar with. It is the Gospel according to Matthew. Conservatives don’t have to listen to the European Union to respect same-sex marriage. Just follow the Bible. They could call it tolerance, for example.
