The EU’s Role in the Protection of Minorities

Although the EU has been an important actor in combating discrimination based on sexual orientation, it mostly avoided issues concerning relationships of same-sex couples and their children since family law does not fall within the EU‘s competence. However, the role of the EU in the latter area seems to be slowly changing as the EU has recently become more engaged in enhancing rights of same-sex families. In particular, questions related to recognition of same-sex family ties in cross-border situations were dealt with by the ECJ in the Coman (C-673/16) or Pancharevo (C-490/20) cases and also attracted attention of the European Commission (see Union of Equality: LGBTIQ Equality Strategy 2020–2025) and the European Parliament (see resolution on LGBTIQ rights in the EU, 2021/2679/RSP). This paper will address the interaction between the EU and its Member States regarding same-sex families‘ rights, using the example of the Czech Republic as a case study.

In 1981, John Hart Ely wrote that “homosexuals“ require special judicial protection due to being systematically disadvantaged by the majority. Forty-one years later, there is backslash against LGBTQ+ rights in many places, even in Member States of a (European) Union which (cl)aims to be founded, inter alia, on equality and respect for human rights, including the rights of persons belonging to minorities. In the context of political disadvantaging of LGBTQ+ people, effective judicial protection is as important as ever. Building on Ely´s theory, this paper puts forward a relatively new theory justifying strong judicial review, allowing courts to advance rights in areas considered political by some, such as equal (same-sex) marriage, parenting or other rights of LGBTQ+ people. The paper concludes that judicial advancement of LGBTQ+ rights is necessary and – in line with Ely´s underlying thoughts – democratic, as it enforces representation.

Discrimination belongs to the most political topics on the EU's plate. In its case law, the Court of Justice extended the responsibility for achieving equality also to private actors: to employers who are hiring (C-54/07 Feryn) but also to those who are not (C-507/18 NH). Furthermore, the ECJ took a rather ambivalent stance to “workplace ideological neutrality“ in C-157/15 Achbita and C-188/15 Bougnaoui, issued on the same day. Its position has, however, become considerably more radical in its recent ruling in C-804/18 WABE and MH Müller where it held that “ideological neutrality“ can even amount to direct (!) discrimination. Where does this line of case-law leave us? The paper will focus on the tension between religious freedom and freedom to conduct business and will set the ECJ's case law into a broader context, including the ECtHR's jurisprudence and wider theoretical considerations of human rights enforcement and balancing.

Unlike in most countries, in the Czech Republic religiously adherent people are a minority of the population. Thus, religious symbols appear in public space to a much lesser extent than in other countries. There are even attempts to push religious symbols out of the public space, especially symbols of religions that do not have a long tradition in the Czech territory. The legal reflection of these trends will be illustrated in a particular case of wearing the Muslim hijab in a public secondary school.