Gareth T. Davies (VU University Amsterdam, Faculty of Law) has posted Is it possible to be a conservative state in the European Union? on SSRN. Here is the abstract:
To be a citizen of a state is to be a member of a political community. Citizens together define that community and choose laws which express their shared values and identity. If those values and that identity are significantly different from those in the majority of Member States, does EU law allow them to be sustained and expressed in law? The Court of Justice has recently intervened strongly to protect the rights of gay and trans people in the EU. The basis for most of its judgments was not EU jurisdiction over these matters as such, but the need to ensure free movement, which is only realistically possible if people can obtain recognition of their families and identities. Outside of the cross-border situation, it says, Member States retain competence over marriage and gender status and other identitarian issues. Yet that is not really true; the threshold for engagement of EU law has become so low, and the way that it can be deployed to obtain rights has become so broad, that de facto Member States no longer have jurisdiction over these matters, and their societies are subject to the same sexual and family norms as the more socially progressive Member States. Thanks to the way the Court has interpreted the scope of EU law, and because it sees no space for value diversity within that scope, it is legally no longer possible to be a conservative state in the European Union.
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