EUOBSERVER / BRUSSELS - The European Commission says that existing EU law on freedom of movement gives adequate protection to same-sex couples. But the story of one family living in Paris shows how a mixture of confusion and prejudice is stripping some EU citizens of basic rights.
Kaisa, a 37-year-old Finnish journalist, has lived with her partner Claire, a French webmaster, since 1998. The two mothers (not their real names) have a four-year-old son and a 10-year-old daughter born to Kaisa via artificial insemination. In legal terms, they registered their civil union under French law in 2004. Claire also has joint custody, giving her the right, for example, to visit her children in hospital in the event of an accident.
Kaisa: 'For them what matters is that they have two parents, two mums - they have been born into this. It's simple. It's obvious' (Photo: Drab Makyo)
That is where the family's rights end.
If Kaisa died suddenly, the French state would take away Claire's children. If Kaisa left Claire, the French woman would have no right to ever see them again. On the other side of the relationship, if Claire died, her children would have to pay a whopping 60 percent inheritance tax because in legal terms, they are strangers. If Claire left Kaisa, she would have no obligation to pay alimony.
"For our children, our family exists independent of what the law says. For them what matters is that they have two parents, two mums. They have been born into this. It's simple. It's obvious. They don't care about recognition in law. That may come later on," Kaisa told this website. "For us, as long as we don't have any problems, things can move along smoothly. But if there was conflict, tension, between us - these issues would be brought in very quickly."
The immediate problem for Claire and Kaisa is not one of anti-gay prejudice but one of legal confusion.
In order to win normal rights, Claire must adopt the children. As her son and daughter are Finnish citizens, this is possible only through second-parent adoption in Finland. But Finnish authorities do not recognise French same-sex unions and refuse to grant second-parent adoption to French-registered same-sex parents. If Claire and Kaisa had lodged their union in Belgium, the Netherlands or Spain, the Finnish courts could rubber-stamp the adoption because Finland does recognise same-sex unions from a handful of other EU states.
"From Finland there is no prejudice as such. They just don't know what to do - they are sticking to some kind of abstract guidelines. It's crazy there are so many different versions of national legislation and no mutual recognition everywhere in the European Union," Kaisa said.
In order for Claire to adopt, the family would have to negotiate a legal maze: Kaisa would have to dissolve her French union; move to Finland for at least six months; register there for tax purposes; register a new civil union under Finnish law; register the adoption; move back to France and obtain French recognition of the Finnish union and adoption package.
If the family moved to another EU country, the whole set-up could unravel. In terms of anti-gay prejudice, their rights would never be recognised in conservative countries such as Italy or Poland. If they were on holiday in a country such as Malta and one family member suffered an accident, there is no certainty that the others would have any hospital visiting rights at all.
Meanwhile, heterosexual families take all rights for granted from the day of their marriage from Dublin to Nicosia.
Asked by EUobserver if the status quo violates Kaisa's rights under the EU Treaty clause of freedom of movement and the Charter of Fundamental Rights on non-discrimination, the commission gave a boilerplate answer.
Citing a 2004 directive on freedom of movement, it said in a statement that: "The directive provides for the right of entry and residence for EU citizens and their family members regardless of the issue of recognition of marriages or partnerships. It is for member states to decide whether they provide in their internal legal order for same-sex unions."
It added that: "It is clear that union citizens, who live in a legally recognised marriage or registered partnership, should be able to maintain their status and their rights under union law when they move from one member state to another." It also noted that a new Action Plan in 2013 will look to: "facilitating free movement of documents and recognition of the effects of certain civil status documents (e.g. relating to birth, affiliation, adoption or name)."
The Brussels-based gay-rights group, ILGA-Europe, does not accept the argument.
"We cannot agree with the commission that the Freedom of Movement Directive is already tackling the gaps. Many same-sex partners are in fact opting not to travel and reside in a number of EU countries due to the implications that non-recognition of their marriages or registered partnerships has on their lives," it said in a statement in September.
What ILGA-Europe and Kaisa see behind the commission's stance is an unwillingness to tackle the politically explosive issue of enforcing liberal same-sex norms in conservative eastern or southern EU states.
As a journalist herself, Kaisa can imagine the headlines: 'EU imposes gay adoption on Poland.'
"It is a controversial subject, which forces people to say whether they are for or against same-sex unions. But in a way it's not about these theoretical discussions at all. These families already exist in Europe - if they are recognised by one country, they should be recognised by another, because non-recognition has very concrete consequences for people's lives," she said.
"It's about freedom of movement, about a founding principle of the EU. So what's more important for the commission - protecting its principles or making sure it doesn't make certain member states angry?"
The latest survey in Illum shows clearly that the average Nationalist is no more liberal than the average Labourite.
An Illum survey (disclaimer: this link takes you to the paid digital paper site) shows that Nationalist voters are more likely than Labour voters to think that voting for divorce is a sin.
This tallies with other surveys showing more conservative attitudes on divorce among Nationalist voters. These surveys have exploded the myth that the average Nationalist is more liberal than the average Labourite. And a reading of Mark Vella's anthology of short stories by Juann Mamo might help explain this anomaly.
The misconception that Nationalists tend to be more liberal is grounded in history. The PN, due to its anti-authoritarianism in the 1980s and its pro-EU vision in the 1990s, did attract support among middle-class liberals, not just those born within the traditional elites but also among those owe their status to education, rather than inherited wealth or status.
Surely some of these never felt completely at ease in this coalition, considering the PN more of a lesser evil rather than their natural home. But as Labour rendered itself unelectable, some came to regard the PN as the natural party of government. A few liberals were even co-opted in the networks of patronage.
A minority of social liberals did cling to Labour, some out of ideological conviction and some due to undying tribal loyalties.
A few, perhaps the most left-wing and Europeanised, founded Alternattiva, which despite its disappointing electoral results was a forerunner on all major political themes ranging from divorce to environmental issues to the whistleblowers' act. AD's challenge to the status quo did not dent the PN's hegemonic hold on the liberal elements of the middle class.
But despite their strategic importance for the PN's bloc, middle-class liberals were never strong enough to dominate the PN's coalition. One cannot ignore two other important components of the PN's hegemonic block: the traditional upper middle classes and the conservative – mainly rural – masses which formed the bulk of its support till the 1970s, when the party started evolving into a broad church opening itself up to workers and their more educated children.
The traditional upper-middle class, which owes its power and status to inherited wealth may have had its rebels, homosexuals and libertines, but it also provided leaders for both Catholic lay organizations and the Nationalist party. The rural masses were brought up in ignorance and blind loyalty to the church and the traditional elite. Back in the 1920s they were recruited by PN agents to attend 'miters' [meetings] to protest against "protestants, freemasons, schismatics, demons who fly in the night, sect members, the devil… and the serpent in the garden of Eden."
The relationship between the dominant elite and the ignorant masses is brilliantly described by Juann Mamo in a collection of stories recently compiled by Mark Vella. In his unforgiving mode, Mamo does not seek to redeem the ignorance and prejudice of rich and poor alike, even if he supports legislation aimed at emancipating the poor whose ignorance and mediocrity he despised.
As a follower of Manuel Dimech (Malta's nearest equivalent to continental republicanism and radicalism) Mamo cannot be pigeon-holed as a Labour Party founder. In fact he was more of a left-wing Striklandjan than a Labourite.
Despite the decline of agricultural rural Malta, there still exists a popular class brought up in deeply-rooted conservative values, which Mamo despised. In some ways, consumerism and the populist media have supplemented religion. While this could be eroding religious certainties, it is also perfectly possible for traditional outlooks to co-exist with consumerism and populist media.
Perhaps divorce is one of those issues where the hold of the Church on popular culture is becoming weaker. But this may well leave place to other even more dangerous forms of prejudice and insularities. This latent conservatism thrives not just among the lower classes but also among the nouveau-riches who might live opulent lifestyles but who still retain a medieval outlook to life. It also thrives among graduates whose education is purely functional and lacks any critical thinking.
Therefore in Malta one can only speak of a small but growing new middle-class which has gravitated towards the PN without being strong enough to break the dominance of the traditional elite and the dumbing-down effect of popular culture.
On the other hand, Mintoff's first steps towards a secular nation and the moral violence directed towards Labourites in the 1960s did emancipate a section of the masses from blind subservience to clericalism. In some ways he managed to give workers a first taste of political emancipation. This might explain why Labourites are more likely to support divorce.
Yet after his second victory in 1976, a distasteful package of autarky, political repression and sterile workerism diluted the progressive credentials of the Labour Party. The internalization of Mintoffian tribalism and a latent populism remains to this day a major obstacle for the party to win over discerning voters on both its right (economic liberals) and its left (social progressives).
It was a different story in the 1920s when people like Juann Mamo, who had nothing but contempt for ignorance, prejudice and superstition, felt politically represented by the Compact. The Compact represented the only moment in Maltese history were Labour formed an alliance with the more secular and open-minded elements of the upper middle class to modernize Malta.
Far from glorifying autarky, Labour and the Constitutionals believed that progress depended on Malta's further integration within the British empire. It was a question of either "progress in empire" or the inward-looking Italianità of the elite. Truly the origins of Italianità were secular, rooted in the liberal Risorgimento of Mazzini and Garibildi. But by the 1920s these were infused with clericalism and sympathy for Franco and Mussolini.
The demise of the Striklandjani was a definite loss to Malta's political cultural as it denied Malta an expression of middle class opposition towards right-wing obscurantism. Mabel Strickland's blend of Catholic conservatism and imperial subservience was partly to blame for this decline. Her only long-term legacy was her advocacy of womens' rights (at a time when they were expected to stop working after becoming mothers) and her campaign against dust pollution in Lija.
But her conservative frame of mind led her to oppose an integration project which her father would have probably supported.
The party simply disappeared after a dismal result in 1971. Yet I suspect that this Stricklandian trait has never disappeared completely from the Maltese political psyche. And perhaps the ground has never been more fertile for its resurgence.