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4th ECPG Conference, Uppsala, Sweden, June 10-13th, 2015

Europeanizing and Nationalizing the Regulation of Same-Sex Couples in Central and Eastern Europe MAXIME FOREST, PhD Research Associate and Senior Lecturer at Sciences Po Paris (OFCE) Key words: Europeanization; gender rights; discursive institutionalism; nationalism; Central & Eastern Europe This paper provides a comparative overview of the policy debates around the regulation of same-sex partnership in Central and Eastern European Countries (CEEC). Theoretically grounded into critical frame analysis (Verloo, 2005; Lombardo & Meier, 2009) and discursive institutionalism (Schmidt, 2010; Lombardo & Forest, 2012 and 2015), it will primarily draw upon the comparative analysis carried out under the QUING project (FP7, 2007-2011) to be complemented with updated data for 2012-2014 and the work of the author on the gendering of democratic transition and Europeanization in CEEC. The paper will firstly place recent developments against the background of institutional heritages from State socialism as regards the regulation of homosexuality. It will then address the different pathways for its de-penalization and/or visibilization after 1989, accounting for the first attempts to legalize same-sex couples in 1990s’ Czech Republic and Hungary. Framing the de-penalization of homosexuality as a necessary step to abolish the most authoritative features inherited from State socialism, it will argue that first liberalization measures were adopted without raising public awareness nor resolute ideological contention, with little attention for lesbian or transgender people. After a brief account of the debates on the recognition of same-sex partnership held in the region in the realm of EU-accession, it will further explore the role of Europeanization-driven vs. domestic variables by focusing on two specific countries: Croatia and Hungary. Once a forerunner in the region in recognizing same-sex partnership (formally granted in 1996 and legislated in 2007), Hungary eventually prohibited gay marriage by the new Constitution adopted in 2011 by Viktor Orban’s two-third majority, concluding a process of growing polarization. In Croatia, the legalization of same-sex partnership in 2006 intervened in a window of opportunity inaugurated by EU accession, but the prohibition of Gay-marriage by the Constitution, triggered by a referendum, coincided with joining the EU in 2013.

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Introduction Gender equality and Gender rights cover a huge diversity of issues, of which some - as the politicization of reproductive rights, the masculinization of political power or the impact of market transition, have been thoroughly addressed by the literature on post-socialist transformations (see, among others: Kaplan, Scott, Keates, 1997; Gal & Kligman, 2000; Matland & Montgomery, 2003). Initially building upon the categories, sequences and actors identified for precedent waves of democratization, this literature progressively developed a finer-grained picture, taking into account the different paths of extrication from State socialism experienced in CEE countries and their long-lasting impact on features such as institutional heritages or social structures. More recently, EU-accession has been described as a window of opportunity for revising the gendered dimension of the post-socialist transformation. Yet the interest for the impact of this process on Gender equality and Gender rights has been mainly formulated in terms of conditionality, implementation and convergence. The unprecedented conditionality of the EU Eastern Enlargement thus drew attention on the adaptation of the EU body of Law in the field of Gender Equality. However, this conditionality led to analyse the legislative and policy instruments consecutively adopted by the candidate countries as elements of convergence, assuming that they would necessarily contribute to greater integration. Once again, studies have pointed out crucial discrepancies, narrow definitions of Gender Equality and/or Gender rights (Roth, 2004; Forest, 2006a), as well as the differentiating effect of Europeanization, thus assuming with Claudio Radaelli (2004) that “Europeanization is not convergence”. From the sociological and discursive turns in EU-studies (Jacquot, Woll, 2003; Dakowska, Neumayer, 2005; Schimmelfennig & Sedelmeier, 2004, Schmidt, 2010; Lombardo and Forest, 2012), these studies have also made more salient the need for a more comprehensive definition of Europeanization, that goes far beyond implementation and includes social learning, norm diffusion and a broad definition of policy transfers (Marsh and Dolowitz, 1996). Simultaneously, the making of Gender Equality and Anti-discrimination policies, both at the EU and the national level, has become a rich area of investigation in the EU-28, and in the past few years, comparative projects were launched, covering at least one CEEC and thus breaking with the “methodological exceptionalism” that consists in systematically addressing post-communist countries through different methods and paradigms. Reshaping intimate citizenship in Central-Eastern Europe has long been mainly addressed through the sub-issue of reproductive rights, for which the political discourses in favour of traditional family values and a restriction of women’s participation to the public sphere, pointed out the pervasiveness of rhetorical arguments linking Gender rights with the preservation of the traditional wedlock and the demographical future of the nation. The rights of sexual minorities, and the recognition of non-heterosexual forms of partnership and family are also pointing the discursive linkage between the policies of population growth and the redefinition of Gender rights (Buzogány, 2008, Forest, 2008). Two opposite trends have drawn scholars' attention: on the one hand, the recognition of same-sex partnerships has been publicly debated in most of the CEEC since mid-1990s, with a positive – albeit often limited – policy outcome in Hungary, Slovenia, the Czech Republic and Croatia. Moreover, the conditionality of EU-enlargement made compulsory the approval of

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better designed anti-discrimination provisions, supposedly including discriminations on the ground of sexual orientation in a number of areas, as listed in two EU directives (2000/78 EC and 2000/43 EC). Yet, on the other hand, debates related to the recognition of same-sex partnerships and the approval of anti-discrimination acts have revealed to be highly controversial and some backlashes can eventually be noticed in the post-accession period (see: Buzogány, 2008; Slootmaeckers and Sircar, 2014; Kahlina, 2014). In this paper, I will firstly explore how the claims for the recognition of same-sex couple did emerge in some countries, while they were silenced in others. The indirect influence of external variables and the variety of frames that emerged along these debates will be discussed, with a special emphasis on the afore-mentioned countries where these debates have produced substantial policy changes. Secondly, I will account of the domestic impact of Europe on the recognition of same-sex couples, as well as its contentious dimension for domestic actors, framed as Europeanization vs. nationalization. This paper will primarily draw upon the comparative analysis carried out under the QUING project (FP7, 2007-2011) to be complemented with updated data for 2012-2014 and my own work on the gendering of democratic transition and Europeanization in CEEC. Although comparisons and analyses of the role of the EU variable developed in this paper are the ones of the author, I wish to acknowledge the work and inputs from QUING teams at the Central European University Budapest and the Peace Institute, Ljubljana, as well as the useful insights by Aron Buzogány.

1. The coming out of sexual minorities With the notable exception of Poland, that had banished homosexuality from its penal code as early as 1932 (Drabowska, 2007), the first wave of de-penalization occurred by early 1960s, at the end of the Stalinist era. Previously, discriminatory provisions explicitly mentioning sexual orientation had been introduced or reinforced, largely influenced by the family doctrine expounded in the Soviet Law of 1944, making abortion a criminal offense and practically prohibiting divorce. Adopted in the context of the huge human losses of WWII, it subordinated the regulation of intimacy to a strictly pro-birth policy. After Stalin’s death and before the XXth Congress, critical articles were published in Soviet Literaturnaia Gazeta, calling for the most severe restrictions to be abolished (Nakashi, 2006). After a long process of aggiornamento, abortion was re-legalized in 1957. Yet, in popular democracies of Central-Eastern Europe, this aggiornamento made possible to enact more liberal legislations as soon as 1953, granting reproductive rights to Czechoslovak, later Hungarian women (1956). As another consequence of the liberalization of pro-birth policies (following the post-war relative increase in birth rates), the penalization of homosexual relationships, understood as sexual relationships, was removed from the penal codes in Czechoslovakia and Hungary (1961) or the GDR (1968), except residual provisions concerning the age of consent. However, this step forward did not mean a visibilization of sexual minorities. On the contrary, the hygienist discourse of public authorities on intimacy and sexuality, with a strong condemnation of anti-social behaviours, prevented any public expression of homosexuality, which remained a criminal offence in the Soviet Union, Yugoslavia, Bulgaria or Romania. As a consequence, be it by fear of penal prosecutions or to avoid

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stigmatization, no organized gay and/or lesbian movement emerged until late 1980 in CEEC. The first public debate on the regulation of sexual orientation was held in late 1970s in Yugoslavia, where it can be related to the blossoming, so-called “New Yugoslavian feminism” (Jancar, 1985) that developed among prominent intellectuals such as Serbian Blaženka Despot or Croatian Biljana Kašić and Slavenka Drakulić. Homosexuality was decriminalized in 1977 in the federation and consecutively, the diffusion of feminist concerns among the female leaders of the communist leagues of Yugoslavia1 proved to be favourable to make intimate citizenship issues a public concern. First gay and lesbian organizations were officially registered, respectively in 1984 and 1987 in Slovenia (Kuhar & Takacs, 2007; Kuhar, 2008a).

As illustrated by table 1, the first post-1989 debates on the regulation of sexual minorities’ rights emerged in highly differentiated contexts, ranging from prohibition to incipient visibilization. It is therefore not surprising that these debates focused on different issues (de-penalization, equalization of the age of consent, recognition of same-sex partnership or judicial protection against homophobia).

Table 1. Recognition of LGBT rights: an overview Decriminalization of

Homosexual consented intercourses

Age of consent equal as for heterosexual

partners

Legal recognition of same-sex couples (debated)

Gay marriage (debated)

Bulgaria 2002 2002 - - Croatia 1977 1997 (2001) 2003 (2013) Czech Republic 1961 1990 (1992, 1997, 1999) 2006 - Estonia 1992 1992 - - Hungary 1961 2002 1996* (2006) 2009 (2011) Latvia 1991 X (1999, 2006) - Lithuania 1992 1992 (2004, 2006) - Poland 1932 1932 (2004) - Romania 2001 2001 (2002) - Slovakia 1961 1990 (2002) (2015) Slovenia 1977 1977 (2003) 2005 (2009) 2015 * non-registered partnership Source: QUING deliverable nº19 + update of the author With transition to democracy and freedom of assembly, LGBT organizations have blossomed in several countries, such as Hungary, the Czech Republic or Slovenia. But they did not have the organizational capacities or the will to influence policy making, at a time when crucial reforms were being carried out in state-legislation, in order to meet international standards in the preservation of Human rights. As an example, Czechoslovakia repealed Article 244 that stipulated a different age of consent for heterosexual and homosexual relationships from its penal code soon after the first democratic elections, in July 1990. But when in 1992, the Czech Cabinet drafted a set of amendments to the Civil Code, the first gay and lesbian organization to be ever registered, SOHO (the Association of Organisations of Homosexual Citizens), could not exert any pressure, and the articles on same-sex relations were rejected (Nedbálková, 2006; Röder, 2007a). A similar situation occurred in the Baltic States, were the de-penalization of homosexuality was approved without any public debate, as a necessary

1 Savka Dabcevic-Kucar and Milka Planinc in Croatia, Latinka Perovic in Serbia and again Planinc, as federal Prime Minister (1982-1986)

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step towards international recognition and a way to erase the most authoritative features of their legislative orders. As such, the first liberalization measures adopted in post-socialist states were adopted without raising public awareness about these issues, nor constituting an acute political cleavage. These measures also left a number of blind corners, with no specific concern for lesbian or transgender people and a predominantly “male” understanding of homosexuality. Quickly enough, the development of LGBT organizations in CEEC revealed to be path-dependent, even among countries sharing a common past. For instance, in Slovakia, the authoritarian features of the Mečiar’s era were accompanied by a vote-catching attitude and close control over NGOs, hostile to the expression of “marginal” social claims, while in the Czech Republic, Lesbian and gay movement early received public recognition. Indeed, the spread of AIDS by mid-1990s urged public authorities to support NGOs to carry out preventive action in the field of health policy. Similarly, Croatian and Slovenian LGBT movements developed at very different speeds. In Slovenia, first NGOs were visible in the public space as early as late 1980s, and to a certain extent, benefited from the institutionalization of Gender policies. In Croatia, LGBT organizations emerged well after the end of the “Independence War”, in 1995, and the breakthrough of the movement did not come before 2002. Meanwhile, anti-discrimination claims were silenced by the revitalization of religious and nationalistic references that shaped post-1991 Croatian political culture (Kuhar, 2008a). In Poland or Lithuania, incipient LGBT communities had firstly to deal with the strength of traditional, hetero-normative values and were mainly engaged in a politics of anti-discrimination, in order to prevent the most brutal assaults against gay and lesbian individuals. They found a resolute opponent to the redefinition of intimate citizenship in the Catholic Church, with strong lobbying and social mobilization capacities, while in Estonia, the claims of LGBT organizations were being continuously ignored, rather than receiving consistent or articulated opposition. In Romania and Bulgaria, sexual minorities’ rights did not emerge as a public matter until their delayed accession to the EU urged both countries to adapt anti-discrimination directives, with decriminalizing homosexuality as a first step. Similarly, in Latvia, the issue has come out only recently, facing strong political condemnation and enjoying limited civil society support. As in Poland, the right to assemble has been repeatedly denied to LGBT organizations, which have in return engaged in the “Europeanization” of their cause. In this context, the case of Hungary strongly contrasts, as LGBT issues emerged relatively early in the public space: gay and lesbian organizations have been active since the late 1980s, gay pride marches being held undisturbed from 1996 up to 2006 (Dombos, Kriszán, 2007), while a decision of the Constitutional Court in 1995 prescribed the legal recognition of same sex couples.

2. Regulating same-sex partnerships: an overview

The Czech Republic

In 1995, two female MPs of the centre-right Civic Democratic Party (ODS) presented a same sex partnership bill (with provisions limited to inheritance rights and the right of common residency), of which the discussion was postponed several times

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and eventually never took place due to parliamentary elections. A few years later, SOHO – the main LGBT organization, together with a cluster of deputies of the Communist Party, the Social Democratic Party and the Civic Democratic Party, prepared a bill on same-sex registered partnerships. The bill referred to the family law, explicitly excluding the possibility of common upbringing and adoption of children. The Cabinet assumed a negative position on 21 January 1998 and the Chamber of Deputies, after an extensive first reading, decided to turn the Bill down (Röder, 2007). Among the MPs who submitted the bill, ODS Deputy Jaroslav Zvěřina, a sexologist, extensively referred to the equally legitimate emotional dimension of homosexual partnerships. The issue was also debated in the media, with an overwhelming majority of medical “specialists” supporting this assumption. Most of them had a long-standing professional commitment toward LGBT people, sometimes to be traced back to the 1980s (Sokolová, 2006). First opinion polls on the issue positively echoed a legal recognition of same-sex partnerships, in the form suggested by the bill (i.e excluding adoption), although with a narrow majority of supporters.

Therefore, the psychological-medical framing of the issue revealed to be clearly supportive of LGBT claims in the Czech Republic (while it has often been armful for those of the feminists, for instance). If Christian-democrats (KDU-ČSL) did not openly deny the right of homosexual individuals not to be discriminated and stigmatized, they opposed a bill that tended to bring the rights of same-sex couples closer to those of heterosexual married people. Far-right Republican Party MPs were eventually the most consistent in their opposition, framing the legal recognition of same-sex couples as an imported threat for the future of the nation and the health of the youth. Deputy Josef Krejsa simultaneously denounced drug-abusers, pornography and homosexuality as “factors of ruin”, for “the benefit of our German neighbors for whom it is not sufficient to corrupt our inner market, so they now attempt to ruin the health of our young people!”2 A third framing can be identified from this first debate, that eventually revealed the most harmful to the legal recognition of same-sex couples: “keep Intimacy a private matter” denies State's legitimacy to legislate on Intimate citizenship, beyond the rights already recognized in the field of reproductive health.

In 1999 another bill on same-sex partnership was presented by representatives of all parliamentary parties except the Christian Democrats. The Cabinet supported the bill but the Chamber of Deputies dismissed it in the second reading, provoking a wave of protest in the media. In 2000, the Ministry of Justice drafted a thorough Cabinet bill on same-sex partnership. The Chamber of Deputies rejected it straight in the first reading. It returned to the Cabinet for revision, which was interrupted by parliamentary elections in 2002. In April 2004, MPs of all parliamentary political parties except the Christian Democrats drafted a new bill, taking into account the comments by Gay and Lesbian League. The Bill was returned in second reading in November, 2004. With the support of the Gay and Lesbian League, another inter-party initiative submitted a new bill, adopted in third reading on 16th December 2005. Although the Senate was then dominated by right-wing conservative parties, the bill was approved and by early February 2006, it was submitted to President Vaclav Klaus (2003-2014), who criticized it for “raising the same-sex partnerships to the level of marriage” and

2Stenoprotokoly 23 schůzí PSP ČR, 2 dubna 1998 [Minutes of the 23rd session at the Chamber of Deputies, April 18th, 1998], Pragu : Parliamentary archives, quote p. 18.

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vetoed it, explaining that “if to the homosexual individuals, such recognition might be meaningful, to the State, it means nothing”. Social-Democrat Prime Minister Paroubek urged Social-democratic MPs to outvote the presidential veto, which was done in March, 2006, the Law3 coming into force in June, 2006.

Poland

From the first Report on Discrimination on the basis of Sexual Orientation presented in Poland in 1994, the advocacy of sexual minorities, mainly due to LGBT activists, has long been drawing upon an anti-discrimination and human rights frame. Within this framing of the global issue of the social recognition of sexual minorities, registered partnership or gay marriage have featured as secondary, depending on the result of the broader fight against discriminations. From early 2000s onwards, the strategic framing adopted by the advocates of sexual minorities increasingly referred to the EU anti-discrimination directives and increased its lobbying activities at the EU-level, in order to pressure domestic political actors to adopt strong policy measures against homophobia. This strategic shift framing did succeed to make LGBT rights in Poland a European issue, especially as Parties Law and Justice (PiS) and The League of Polish Families (LPR) were gaining electoral support, culminating in the 2005 electoral victory of PiS.

In September 2004, a draft law on registered partnership had nonetheless been discussed before the Senate. The project, submitted with the support of then ruling Social Democrats (SLD) paved the way for other forms of partnerships, including same- sex relationships, to be legally registered. Registered partners would have been granted right to inheritance, family insurance, common taxation and other legal benefits, but would not have been allowed to adopt a child. The bill did not pass through the first lecture and was abandoned after PiS won the general elections (Dabrowska, 2007). More generally, the incipient signs of recognition of sexual minorities to be noticed by the end of SLD coalition government, as the support provided by the Plenipotentiary for Equal Status of Women and Men to anti-homophobia campaigns and public debate on same-sex partnerships during the final countdown before joining the EU (2003-2004) have been jeopardized when brothers Kaczynski came to power, eventually dissolving the administration of the Plenipotentiary. Reestablished after the victory of the Civic Platform (PO), in October 2007, this organ showed limited interest for LGBT issues until late 2011, when the Plenipotentiary declared she considered legislating same-sex partnerships a priority.

From the ranks of PO and its ally, the Polish People’s Party (PSL), a project of bill offering limited recognition to same-sex couples was discussed internally, which was dismissed by the government. As an alternative, a new bill was designed by the Social Democrats in the opposition, which was never introduced, as it had no chance to be passed. Under the pressure of LGBT organizations, which addressed the Speaker of the Lower House to put such a bill on the agenda, a new debate emerged around a proposal modelled on the French “Pacte Civil de Solidarité” (PACS), to be introduced by the SLD. Although the government led by PO did not oppose the bill, its introduction 3The Law includes heritage, common assessment for social support and employment policies, mutual juridical protection.

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before the parliament was constantly delayed, until late, 2011, also due to the comments from the Supreme Court, which undermined the constitutionality of the bill but underlined at the same time that current legislation might be discriminating in the sense of EU directives. Again, general elections interrupted this process and as result of consecutive ideological polarization on this issue, three different bills were introduced in 2012, also reflecting different strategic framings and degrees of pragmatism: two bills were introduced by the opposition – one modelled on the French PACS and the other on the first bill ever debated, in 2004. A third one, offering more limited legal recognition, was introduced by PO majority. In January, 2013, the three bills were rejected by the Lower House, the one introduced by PO losing by only 17 votes (out of 439). As by 2015, no other bill had been discussed, and the unexpected victory of conservative PiS candidate to the Presidency, in May, 2015, will certainly complicate further initiative from the current PO majority.

Facing an anti-discrimination and Human rights frame mainly advocated by LGBT and feminist organizations, with the support of the European Court of Human Rights and the European Parliament, the politics of Intimate citizenship in Poland have been dominated by a conservative frame with a strong religious content. Until a real parliamentary debate was launched about the recognition of homosexual couples in 2011-2013, no consistent argumentation had been developed, but a framing of LGBT rights as a threat for the values presented as founding the Polish polity, to be related with cultural decadence and foreign influences. Until the early 2000s (Drabowska, 2007), conservative assumptions were also frequently echoed on the left of the political spectrum. A third frame can also be identified in Poland, not only covering LGBT rights but all the issues addressed within intimate citizenship, to be described as a “status quo frame”. Since the fierce debates on abortion of the early 1990s, that ended up with its prohibition except under very limited circumstances, Centre-left and Centre-Right parties (as now ruling PO) have been reluctant to engage with these issue, associated with limited gains and high electoral risks. Slovakia4

In 1997, echoing the first parliamentary debate on same-sex partnership in the Czech Republic, a Draft of the Act on a Registered Partnership of the Homosexual Couples was published in Aspekt, a feminist journal with a limited impact among politicians. In 2000, an informal platform of NGOs, Iniciatíva Inakosť (Initiative Otherness) was established, of which main objective was to pursue the adoption of an act on registered partnership. Moreover, four NGOs representing gay and lesbian minorities initiated the draft of the Act on the Same-sex Partnership5 (Očenasová, 2007). According to NGOs, the draft could draw upon Articles 1 and 12 of the Constitution, while a counter proposal from Christian Democrats (KDH), tried to subsume the situation of same-sex couples under existing sections of the Civil Code. The draft of the Act was not included in the National council agenda. As a third attempt, “Iniciatíva Inakost” cooperated with a cluster of MP from different parties on a draft making homosexual partnership equal to heterosexual marriage in all matters

4 For timelines in Slovakia, I drew upon Očenasová’s report for the QUING Project (2007), the analysis of a sample of documents by Chrobáková-Repar (2008) and my own legislative process tracking. 5Zákon o registrovanom partnerstve osôb rovnakého pohlavia

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except children adoption and medically assisted reproduction. Submitted in October 2001, it did not proceed to the 2nd reading.

Much more impressive is the record of the anti-agenda of same-sex partnership: In 2000, Slovak Republic signed a Basic Treaty between Slovak Republic and the Holy See, where the Slovak Republic pledged (by Article 11) to support and protect only marriage and the family which comes from a marriage. In 2002, on the instigation of one of the (then) ruling coalition parties (Christian Democratic Movement), the NR SR approved a Declaration of the National Council of the Slovak Republic about the EU Member States´ Sovereignty in the cultural and ethical issues. In the Declaration, respect of the sovereignty of the EU member states is required regarding the protection of family and marriage as a founding institution. In 2004, a provision was introduced into the Law on elementary and secondary schools, according to which “it is not permitted to influence sexual orientation, which is contradicting human dignity and traditional values of European culture (…)”.

Public debate has long been dominated by a conservative frame based on the preservation of marriage and the principle that other forms of unions contradict (catholic) European values. This frame has been mainly articulated by Christian Democrats, who barely account for 10% of votes, but has revealed a key-actor in coalition-building from 1999 to 2012 and enjoy a larger audience about social and morality issues. Besides, populist and nationalist discourse cultivated among prominent members of the Slovak National Party (SNS) gave some clear occurrences of a framing of LGBT rights issues grounded on the assumption that homosexuality is a disease, a “plague”, allegedly imported that need to be eradicated. However, a human rights and anti-discrimination frame has been emerging since the victory of SMER (social democrats) in 2006 and despite the presence of SNS members in governmental functions during the term 2006-2010. With the support of LGBT organizations and some prominent politicians, it tended to go beyond the limited references to sexual orientation introduced in the 2004 anti-discrimination act adopted under the pressure of the European Commission. Besides, the Christian-Democratic movement has lost its key position in making majorities in 2012.

But the opposition to the legal recognition of LGBT rights in general and same-sex couples in particular, has not faded in Slovakia. In June, 2014, an overwhelming majority of the left-dominated parliament, voted an amendment to the constitution that anchors the definition of marriage as the “legally recognised union between a man and a woman”, rising new concerns from LGBT advocates. This amendment did not end with the claims of conservative voices, supported by the Catholic Church, calling for a referendum. After gathering 400,000 signatures to hold the referendum in a 5 million-inhabitants’ country, the vote took place in February, 2015 on three questions related to framing marriage as the union of a man and a woman; prohibiting adoption for same-sex couples and opposing sexual education in public schools – one question on registered partnership having met the opposition of the Constitutional court. Although opponents to the referendum did not effectively joined efforts, the referendum did not passed the 50% threshold, as only 21% casted their ballot6.

6 Slovak Electoral Commission.

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3. Framing same-sex couples recognition: between nationalization and Europeanization?

3.1 Assessing the domestic impact of Europe

External influences in general, as an intervening variable, played a role all along the debates on same-sex partnerships that have developed in CEE. This includes the knowledge about institutional arrangements, way of doing things in other political contexts (Marsh & Dolowitz, 1996). Beyond references to the leading countries in the field of gender equality and social rights, vicinity also played a role, as in Croatia + Slovenia (see: below) or Czech Republic + Slovakia (see: above). Moreover, the first changes in the regulation of intimate citizenship regarding homosexuality, have been introduced as a necessary effort to meet international standards in the preservation of Human rights, as defined in international conventions or in the best practices promoted by the UN and its agencies or other international actors (including NGOs). Due to its conditionality and to the wide range of processes it covers, Europeanization must nonetheless be distinguished from other international sources of influence. Besides, if Europeanization, through the politics of anti-discrimination, had an impact on these debates in every new member state, this impact must be differentiated, whether it has been the main impetus for putting these issues on the agenda, or it only provided a new window of opportunity for the advocacy of LGBT rights in general, thus regenerating former discussions.

The development of gender equality and anti-discrimination policies at the EU level, not only including hard law, but also paradigms, models of governance and good practices, does not produce similar – or even look-alike – effects in the member States (Forest, 2006a, Röder, 2007b). Comparative project carried out in country samples that integrate different generations of member States, from the founders to the latecomers, lead to emphasize differentiating patterns (Liebert, 2003). Those not only depend of time (the later the accession, the broader the scope and content of these policies areas at the EU level), but also of the policy and institutional heritage at the domestic level in the affected area (Jupille, Caporaso, 2001). This complex dynamic has been suggestively analysed by Börzel and Risse in terms of „goodness of fit“. Paying attention to the domestic impact of Europeanization, this approach can be extended from the level of legislative and institutional instruments, to the level of soft mechanisms and practices. This is the level of analysis adopted by sociological approaches of Europeanization (Woll, Jacquot, 2003), that stress what Europe is doing to the actors involved in these policy areas at the (sub-)national level(s), and which kind of uses are made of Europe by the very same ones, including Europe as a general, historical reference (disconnected of the EU as a set of institutions), the EU as an instance of legitimization, as a political and social „trend setter“ or ... as a threat for national values and interests (Neumayer, 2006).

The highly differentated nature of Europeanization thus affects these different levels of analysis and understandably, its impact varies greatly from a policy area (or sector) to another. Intimate citizenship accounts for only a small part of the considerable amount of gender equality- and antidiscrimination policies of the

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European Union, as there is no legislative ground for a communautarization of the regulation of reproductive health, family and sexual rights. Subsequently, the policy action of the EU consists in soft instruments and norm diffusion. Additionaly, it must be emphasized that Europeanization is a set of processes that also include the tranformation of the patterns of collective action. To the contact of EU policies, often mediatized by their impact on domestic politics, social actors, such as Feminist or LGBT organizations, occasionnaly joining in „advocacy coalitions“ (Mazur, 2002), have thus been confronted, through different channels (funding procedures, consultation, tasks of expertise) to substantial changes in their agendas, methods of action or strategic framings (Forest, 2006a ; 2006b). If we consider such a broad definition of Europeanization, there is no doubt that the politics of the recognition of same-sex relationships and partnerships in CEEC have been impacted in different ways. Yet, this impact has been of a variable intensity, alternatively constituing a variable or a consistent framing of the issues at stake. Whereas a complex assessment similar to the one proposed in other areas of gender equality policies falls out of the scope of this paper, these differentiating patterns can nonetheless be illustrated in the light of a sample of country-specific debates, as below.

3.2 A domestic framing to the issue of gay marriage? The case of Slovenia

Slovenia

During 1990s, LGBT collectives repeatedly brought the issues of same-sex partnerships and gay marriage into the public discussion, arguing that the article 14 of the Constitution prohibits discrimination based on any personal circumstances and that article 141 of the Penal code explicitly prohibits discrimination on the basis of sexual orientation (Greif, 1998). An expert group was established within the Ministry of Labour and Social Affairs, under the supervision of a respected lawyer. As in the case of such expert groups on gender equality issues, it included representatives of LGBT organizations. However, the first draft was never transmitted to the Slovene Council. Another expert group was established in 2001, requested not to include the sub-issues of adoption and legal protection of same-sex families, thus reproducing ex-ante a definition of homosexual individuals as second-class citizens, in contradiction with the provisions of the constitution. As emphasized by Kuhar (2008b), gay and lesbian experts and activists participating to the expert group deliberately refrained from legislating gay adoption issues.

Nevertheless, the first bill submitted in 2003, on behalf of the post-communist Union of Social Democrats (ZLSD) and with lip-service support of the then ruling centre-left Liberal Democrats (LDS), granted substantial rights to same-sex couples, despite the opposition of a the right-wing People’s Party. During the first parliamentary debate, the main argument of its most resolute opponents was that “The law cannot equate something that cannot be equated. (...) Due to the physical survival of the society – a goal to which the State is committed- public authority has to stand for granting legal and tax privileges to ensure families to be prolific. (…) The homosexual unions do not and cannot by far fulfil these tasks” (New Slovenia MP, right wing conservative, quoted in Kuhar, 2008a: 60-63). As a consequence, it was emphasized by opponents to the bill, that “While society can tolerate same-sex partnerships, it cannot support them in the same manner as heterosexual ones”

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(People’s Party MP, right-wing conservative; Kuhar, 2008b). This demographical argument was also discursively linked to promoting “natural” reproduction over adoption or medically assisted reproduction, in order to allegedly preserve the ethnic homogeneity of the Slovenian nation. Given this demographical framing, lesbians were curiously out of sight during the legislative process (Kuhar, 2008a, 2008b).

If an agreement was reached between coalition partners in March, 2004, the final approval was suspended to upcoming elections. Following the victory of the right-wing Slovenian Democratic Party (SDS), the initial bill was rejected and the SDS drafted its own bill, reducing the rights of same-sex couples to a minimum without consulting LGBT organizations. The Act on same-sex partnership (Zakon o registraciji istospolne partnerske skupnosti - ZRIPS) adopted on June, 2005, thus enounced a limited number of rights, such as limited inheritance rights or shared medical insurance. Leaving aside the issue of parental rights, no social and pension rights were granted and the act came into force in June, 2006, by which Slovenia became the first CEEC country to grant same-sex couple with some sort of a legal recognition.

By no mean this brought a conclusion to the debate, which durably moved from parliamentary politics to the constitutional ground. Barely three years after the act came into force, the Constitutional Court found that preventing registered partners from inheriting each other's properties and treating them differently from married couples was constitutive of discrimination on the ground of sexual orientation, thus breaching Article 14 of the Constitution. In response, the government had six months to provide a new regulation. Then ruling centre-left Liberal Democrats (LDS) intended to legalize same-sex marriage through a reform of the Family Code. This reform was first presented in September, 2009 and brought before the parliament in December. After being adopted in first reading in March, 2010, the bill was nonetheless modified by the government to address strong resistances that it has sparked in the public. The new version maintained marriage as an institution reserved to heterosexual couple, equalizing rights granted to same-sex couples except for joint adoption. This bill was passed in June, 2011, but was immediately challenged by The Civil Initiative for the Family and Rights of Children, which eventually managed to gather sufficient support to hold a referendum, drawing upon resources and support from the Catholic Church, as shown in Kuhar (2015). Authorized by the Constitutional Court, this referendum ended up with rejecting the bill.

In 2014, the government prepared a new bill, equalizing rights among different partnership regimes, except for Medically Assisted Procreation and adoption. Suspended to the result of anticipated elections, this bill was soon challenged by a parliamentary bill on same-sex marriage. Coming from the left-wing opposition, it intended to grant same-sex couple with equal rights to heterosexual married couples. It received the support from two of the parties represented in the majority coalition and was passed in March, 2015. Again, The Civil Initiative for the Family and Rights of Children managed to collect signatures in the perspective of convoking a popular-initiative referendum. While the government seemed reluctant to oppose the referendum, a group of MPs convoked an extraordinary session of the House, which voted to declare that the referendum would violate the constitution as it would regards matters of human rights and constitutional freedoms. Last appeals before the

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Constitutional Court were submitted in April and May 2015, still under revision as by the end of May, 2015, making unsure whether Slovenia will become the first CEEC to legalize same-sex marriage.

Although references to Western democracies in matters of gender rights were occasionally brought into the debates, as stressed by Roman Kuhar for the first debates on registered partnerships, policy transfers and Europeanization processes have played a relatively marginal role. Instead, debates appeared to be tightly framed within the domestic institutional order. Whereas references to Article 13 of the Amsterdam Treaty could have supported the decision made by the Constitutional Court in 2009, only similar provisions held in the national fundamental law were mentioned. Therefore, while it can be assumed that Europeanization mattered for the broader context of the recognition of equal rights among Slovenian citizens with respect to citizenship and nationality, it only remotely and indirectly affected the discursive framing which eventually led to the recognition of gay marriage7.

3.3 Contentious Europeanization vs. The Nation: Croatia & Hungary

Croatia

In Croatia, the long reign of nationalist and conservative Franjo Tudjman’s HDZ (Croatian Democratic Party), from 1991 to 2000, and, above all, the outraging war in which the country was involved from 1991 to 1995, have long prevented any attempt to publicize the issue (Dedic, 2007). However, taking advantage of the announced reform of the Family Law, so far unregistered LGBT organizations came out by early 2000s, pushing for the legal recognition of same-sex couples. With a wide media-coverage and the rather unexpected support of the Minister of Social and Labour affairs, most of the amendments suggested by these recent organizations were taken into account in the first draft of the Act, renamed Family, Marriage and Common Law Marriage Act, approved in first reading. In order to ensure the Law would pass through further readings, LGBT organizations and the Ministry agreed, as in Slovenia, on a more strategic framing, and decided to address the families and same-sex partnerships in two separate laws. As noted by Juras and Grčan (2005) pragmatism proved to be successful, as the Same-sex Civil Union Act was adopted in July, 2003, despite the fierce opposition of the conservative parties, relaying the positions of the Catholic Church and non-parliamentary nationalist organizations (Kuhar, 2015). Drawing on the Article of the Constitution prohibiting discrimination on the ground of “any personal circumstances”, the Same-sex Civil Union Act could be framed differently by its advocates and its opponents: arguably, it could be seen as reinforcing the “symbolic and legal privileges of matrimony Unions” (Kuhar, 2008b, 11), by enouncing a very limited number of rights (mutual support and common property). And yet, for LGBT advocates, it did constitute only a first step.

7 Another field of gender rights – women’s access to decision-making, provides a similar picture in the case of Slovenia. In 2004, the country was the first to adopt legislated gender quotas in Central and Eastern Europe. Although they first applied to European elections before being later generalized to other elections, quotas owed little to the Europeanization context and much to the domestic debate opened as early as 1990 on women’s presence in parliamentary politics (Antic, 2006; Forest, 2011).

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This fast-track adoption process did not hinder different framings to be articulated during the debates. In the case of Croatia, those clearly opposed an equality and anti-discrimination frame and a frame combining references to “Natural Law” with Catholic and nationalist values, as expressed by the words of a female HDZ MP: “Here we are not talking about Human rights. This bill is a project of destruction of the foundations of Croatian families and the Croatian State. It is a surgery against the values of the Patriotic war and the values of the Christian family”8. Yet, instead of pointing the war as the main responsible for the decrease in Croatian population that occurred by early 1990s (with a drop from 2 to 1.5 in fertility rates between 1990 and 1992), this articulation attempts to present demographic trends as a result of imported social diseases such as homosexuality, as from parliamentary debates quoted in Kuhar, (2008a, 2011). Meanwhile, the equality and anti-discrimination frame revealed ambiguous and inconsistent, as it was convoked to support the approval of a still discriminatory Law and alternatively supported the idea that LGBT people represented either substantial group of citizen or a too limited one to constitute a threat to the demographic future of the nation. Due to these intrinsic ambiguities, a next round of the Croatian debate on same-sex partnership took place in 2005, when a bill was drafted by LGBT organizations, as a step further in the recognition of same-sex partnerships. The document largely drew upon the Slovenian bill discussed roughly at the same time, thus granting social, health, tax, inheritance and pension rights equal to those of matrimonies. The HDZ blocked the discussion at an early stage, and the bill was finally rejected in 2006 by a right-wing coalition. These debates, which largely referred to the catholic values ascribed to the Croatian society, led to reinforcing the conservative framing of the issue (Dedic, Kuhar, 2008), with the growing implication of the Catholic Church (Kuhar, 2015). Simultaneously, as the debate over EU membership was gaining relevance, this conservative stance on the family was increasingly framed as a limit to be posed to the expected consequences of EU membership on issues related to intimate citizenship. This trend eventually materialized in two consecutives referendums, held successively in January, 2012 on EU accession, as requested by the Croatian constitution, and December, 2013, with view to reform the constitution in order to explicitly prohibit same-sex marriage. While 66% of voters casted their ballot in favour of EU-accession, barely two years later, a similar proportion voted for modifying the constitution in order to make marriage the union of a man and a woman, against the position of both the Prime Minister and the President. Called by U ime obitelji (“In the Name of the Family”), a civic initiative supported by the Catholic Church, the referendum proposal had first secured 700,000 signatures. Hungary To comply with the decision, the government chose to open unregistered cohabitation for same sex couples. Two years later, the government initiated the complete re-codification of the Civil Law (including the Civil Code and the Family Code). Except for some minor modifications, the two institutions of partnership remained unaltered until 2007. In Hungary, the framing of the short debates that 8 Very similar assumption have also been expounded by deputy Anto Kovačević (Croatian Party of Justice), quoted in Dedic, Kuhar, 2008, p. 57.

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resulted in the 1996 reform of the Civil Law was characterized by the emphasis on Human rights and non-discrimination, and the need, assumed by the Constitutional court, to make ordinary Law conform to the principles stated in the 1949 constitution9 and ratified international treaties and conventions. If the whole process started soon after the Socialist party (MSZP) won an absolute majority (1994), governing along with liberal Free Democrats’ Alliance (SZDSZ), (then) centre-left opposition of FIDESZ did not attempted to make the reform a casus belli and even proved to be rather supportive (Dombos, Kriszán, 2007, 2008). Much more controversial, however, were the long processes that ended with the equalization of the age of consent and the adoption of a more comprehensive anti-discrimination legislation. Similarly, fierce disputes occurred in relation with the discussion of a registered partnership open to both same-sex and heterosexual couples. Those took place in a context of a growing ideological polarization, in the aftermath of the contested victory of the Socialist Party, in 2006 (for in-depth analysis, see: Buzogány, 2008). In terms of frames, these violent debates that spread well beyond the walls of the Parliament with unprecedented assaults against sexual minorities, can be characterized by the rhetorical linkage between the recognition of same-sex couples, and the politics of population growth. Supported by non-parliamentary right-wing organizations, the public concern over demographical issues has been explicitly linked to the preservation of national virtues and to the condemnation of deviant behaviours undermining the “reproductive health” of the nation. As a collateral effect of the “second political culture” developed by the FIDESZ once in the opposition, this frame turned to be dominant in one of the main parliamentary forces in Hungary. Fierce opposition to the granting of new rights to LGBT people in the rank of conservatives made centre-left parties, which had been so far mostly passive, more determined in advocating liberal values (in particular the Alliance of Free Democrats). The debate on the Act on registered partnership, adopted in December, 2007 and to come into force by early 2009, took place in the aftermaths of the battles over the equalization of the age of consent and the approval of an Anti-discrimination act including those based on sexual orientation. As a consequence, it cannot be denied that this debate has also been shaped by the references to the EU policy framework, as it will be discussed below. However, it mainly stresses country- (or, in the case of Hungary, nation-) specific arguments. Grounded in an ethnic- and religious-based understanding of nationhood and citizenship, it is reinforced by a discourse on the demographic decline of the nation, and the threat that represent domestic ethnic and sexual minorities. Within the broader frame of the polarization of Hungarian party politics, since 2009, the preservation of the nation against threats such as same-sex marriage has become a common place for ruling FIDESZ and far right parties as Jobbik. As a result of this politicization of an issue that initially triggered little political contestation, same-sex marriage was explicitly prohibited by the new Constitution adopted in 2011 by Viktor Orban’s 2/3 majority. It came into force in January, 2012, and does not contain any sort of protection against the discrimination on the ground of sexual orientation.

9The Hungarian constitution forbids discrimination on several specific grounds including gender, ethnicity religion, political opinion and “on any other grounds”, which can be understood to include sexual orientation. Quoted in Dombos, Kriszán (2007).

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Conclusions The legal recognition of same-sex partnerships and its highly differential treatment in the enlarged European Union, account for the huge diversity of the politics of intimate citizenship in Post-socialist Europe. However, such a diversity shall not only be framed as the consequence of differences in social or cultural values that Europeanization, among other historical trends, might contribute to bridge. These debates mostly originate in the very conditions of the Post-socialist transformation. If four decades of soviet domination and/or socialist regimes had produced some common patterns in the politics of family, bodily integrity and gender, this period has been far to shape a sole “gender regime” (Jancar, 1978; Heitlinger, 1979, Wolchik, 1985, Gal and Kligman, 2000). Instead, as documented by the issue of sexual minorities (see: table. 1), various social and legislative arrangements have remained, that distinguished the respective situations of Central Europe, South-East Europe and former soviet republic (as for the Baltics). Moreover, while it is true that the transition to democracy provided a window of opportunity for new social actors to bring new issues on the political agenda, most of initial changes to be registered in the field of intimate citizenship were fostered by governments, whether to meet international standards or, often with opposite outcomes, to promote social values which had been stigmatized or proscribed under communist regimes. The institutional and political paths of extrication from state socialism thus contributed to shape the politics of gender after socialism (Gal, Kligman, 2000). This partly explains, for example, the diverging features of the debates on the recognition of sexual minorities. Mobilized actors, issues at stake (decriminalization of homosexuality, equalization of the age of consent, anti-discrimination policies, same-sex partnership) have been different according to domestic contexts, and so have been the time lines, milestones and policy outcomes of these debates. A comparative analysis of the different frames that have been developed around these issues might help to systematize the findings of cases studies. As an “organizing principle” that turns an issue incidentally and inconsistently addressed in the public space into a meaningful problem, a frame consists in the articulation of a diagnosis and a prognosis, in the form of recommended or actual policy solutions (Verloo, 2006). This suggests paying attention to the cognitive understandings of a same issue that are competing in a public space, and to the voices articulating them. In the case of LGBT rights in CEEC, such a perspective invites to a differential assessment of the roles of domestic and EU-driven variables.

Among the first category, fall the role of the Catholic church, which opposed the emergence of substantial parliamentary debate, as in Poland, and has gained strength over the 2010s to ground heterosexual marriage in constitutions, either through parliamentary vote (Slovakia) or referendum (Croatia, Slovakia, Slovenia), with different outcomes. While these attempts have faced strong resistances from a highly secularized polity in Slovenia, they have met contradictory results in catholic Slovakia, where a referendum convoked by catholic forces failed to meet the participation threshold in 2015 and Croatia, where it prospered, in the presence of a much lower threshold. Another domestic variable, consists in the articulation of same-sex couple recognition with the demographical fate of the nation. A consistent frame in Hungary, it also appears as an important framing element in Croatia, Bulgaria and Latvia (due to

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demographic trends but also to the presence of the Russian minority). This element nonetheless plays a minor role than dominant conservative frames to be noticed in Poland, were the issue of same-sex partnership is subordinated to the broader politics of intimate citizenship in which the Catholic Church and nationalist parties play a central role and in Lithuania, were the anti-agenda expressed through the reaffirmation of the traditional family as a pillar of the nation, prevented any discussion to emerge. In Slovenia, it features as an important rhetorical argument of the opponents to the Act on same-sex registered partnerships adopted in 2005 and to those currently opposing legislation on same-sex marriage. The articulation of demographic issues and conservative family values with LGBT rights was only incidental in Estonia, as LGBT rights did not emerge as a matter of political concern, and in the Czech Republic, where the dominant frame of the debate on same-sex partnerships mainly contested the possibility to legislate at all on intimacy.

Certainly, Europeanization, understood as a set of processes at the levels of policy making, institutionalization, but also practices of advocacy and political or social mobilization, is playing an important role to bring these issues to the light in CEEC. Yet, once again, its impact can be assessed as differentiated, depending among other possible variables, on the path-dependent features of the politics of intimate citizenship in Central Europe (legislative arrangements inherited from state socialism and the transition to democracy), on the nature of the social actors mobilized around theses issues, on the level of pressure exerted by European institutions, and on the more general policy discussion to which these debates were related (anti-discrimination policies, family or welfare policies, civil code reforms...). The country cases discussed in the third section of this paper, provide relevant insights illustrating these differentiated domestic impacts of Europe: in Croatia, the perspective of EU membership has been framed by conservative and nationalist voices, as a potential threat to catholic values, and coincided with reactivating the opposition to same-sex couples’ recognition. In Hungary, while mainly rooted in domestic party politics, and the growing polarization triggered by the FIDESZ, the contentious debates over registered partnership (2009) and the constitutional prohibition of same-sex marriage in 2011, can also be read in light of Viktor Orban’s broader attempt to re-nationalize Hungarian politics by opposing anything perceived as a EU-led trend. Instead, although not disconnected from debates held in other EU member states – as shown by reactions to the recent Irish referendum, the issue of same-sex legal recognition has been primarily framed through domestic political and legal arguments.

While not providing a fully exhaustive analysis of discursive frames developed in CEEC around this issue, we hope this paper communicate valid analytical elements to assess the dual trend of nationalizing vs. europeanizing debates on regulating same-sex couples’ recognition in post-socialist Europe.

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