European Institutions, Transnational Networks and National Same-sex Union Policy: When Soft Law Hits Harder

[From the introduction]. In the past the twenty years, sixteen West European and three East European countries have adopted national same-sex union (SSU) laws that legally recognize and bestow benefits and duties on gay and lesbian couples who chose to enter such unions. This rather startling case of policy convergence has largely slipped under the radar screen of political scientists and European Union scholars. Despite the lack of attention, the SSU case holds potentially interesting lessons for scholars of Europeanization. I argue that the EU, the Council of Europe and a transnational network of lesbian, gay, bi-sexual and transgender (LGBT) advocacy NGOs have played a crucial role in this policy convergence by creating a soft law norm for relationship recognition and disseminating this norm to key policymakers in European states. Thus the nature of the influence that European institutions and networks have had on national SSU policy differs from the formal processes of implementing EU Directives and European court decisions often emphasized in the literature. Until very recently SSU convergence was largely the result of the growing acceptance of the relationship recognition norm within European institutions and the subsequent socialization of national elites. In the past three years, however, both the EU and the European Court of Human Rights (ECHR) have begun mandating some minimal legal recognition of same-sex couples. Using Austria and Germany as comparative cases I argue that, in fact, Europe has had a far greater impact on national policy outcomes when its influence has been felt through the informal processes of norm diffusion and elite socialization than when it has tried to impose formal mandates through court decisions and EU Directives. In Germany, where party elites were influenced by the European Parliament’s call for the recognition of same-sex unions as a human right and by the example of SSU adoption in other member states, a fragile national consensus has formed around the idea of granting same-sex couples most of the rights that accrue to marriage. In Austria, by contrast, where European norms are less influential, a European Court of Human Rights’ decision that mandated the legal recognition of same-sex cohabitants was all but ignored by the Christian Democratic-led government. I use this case to draw some lessons about the important, and often underemphasized, role of soft law socialization in Europeanization processes. The paper proceeds as follows. The next section gives a brief overview of the Europeanization literature and argues that too little attention has been given to the influence of soft law and processes of socialization in these works. The third section introduces the case study and outlines the rather rapid adoption of same-sex union laws across Western Europe over the past two decades. It then traces the development of a soft law norm for relationship recognition within European institutions and policy networks and argues that this norm and these networks are crucial for explaining the wave of SSU adoption described in section three. Section four compares the influence that the this relationship recognition norm has had on the German and Austrian governments and posits that the norm has been more influential when applied in a 'soft' rather than 'hard' or legally binding manner. The final section offers conclusions and explores the implications of these findings