In response to Hungary’s new law banning “promoting or portraying as an end in itself” homosexuality or sex reassignment to minors and limiting sexual education in schools, the European Union and the Western media discourse has been indulging its worst nature. While touting the virtues of federalism, tolerance, and diversity in pursuit of stability, the EU is using the ideal of “a just union” to intolerantly blackmail and punish an unpopular nation to make it adapt its sovereign domestic policy for being too diverse relative to European norms. In doing so, they risk bringing about the very kinds of conflicts the EU was formed to avoid.
While Hungary’s legislation is written in a manner that is neither of the authors’ preference, the law is not remotely on the scale of norm violations justifying an extreme response. The law falls squarely under Hungary’s sovereignty and does not diverge from what can be considered ‘normal’ in European practice. Despite this, European Commission president Ursula von der Leyen declared that the law goes “against all the fundamental values of the EU.” Dutch Prime Minister Mark Rutte said, “Hungary has to repeal the law and be brought down to its knees.” He would even have Hungary leave the EU, if necessary.
The wisdom and good taste of a national leader from an allied country threatening to bring a formerly Communist-bloc state to its knees for social justice is dubious. But even more worrisome is a draft European Parliament resolution to punish Hungary by denying EU funds, using EU laws unrelated to Hungary’s LGBT law.
Von der Leyen also announced juridical steps against the law—steps that are only likely to succeed if the charges are not about the actual content of the LGBT law, because these topics fall outside Brussels’ purview. To get around this, von der Leyen wants to exploit how the law might transgress EU regulation on the free movement of goods. She is pushing the EU to adopt a form of the United States’ expansive interpretation of the Interstate Commerce Clause, which European conservatives should study without delay, as little has done more in the US to reduce the importance of regional politics and identity. With her juridical attacks on Hungary, von der Leyen is attacking the fundamental values of the EU—which might backfire with tragic consequences.
One can have different views about the content of the law itself; we authors have disagreements between ourselves on the details. Yet on a diverse continent like Europe, coercing others to conform to a single view of right has a worrying history, as does the politics of international coalition building. A ‘rainbow alliance’ versus a ‘traditionalist alliance’ of states is exactly the kind of thing the EU was meant to mitigate by making issues of national particularity off limits. But, as skeptics have long feared, the EU seems dangerously intent on violating national sovereignty in a targeted fashion based on a homogenizing agenda. Even if the EU succeeds in its goal of maximizing expressive individualism and LGBT rights, success by these means will spell the failure of the European project.
History and theory suggest that a diverse polity like the EU can only survive as either a democratic federal arrangement or an autocracy. Tremendous diversity leads to irreconcilable differences. When such a disagreement arises, the options are suppressing the opposition (autocracy); allowing subnational governments to set their own policies (federalism); or dismembering the federation (disunion). Peaceful and democratic cohabitation within one European Union requires a genuinely federal approach with strict limits on the range of action by Brussels. This is why subsidiarity is the core principle of Europe’s union, and why the EU behaves politically like a de facto federation, regardless of how much European leaders and intellectuals refrain from saying the ‘F’ word.
Hungary’s law in perspective
Hungary and Western Europe have widely diverging opinions on how to address the rapidly changing views on sex, identity, and LGBT rights, and this presents a challenge. Of course there must be limits to member states’ autonomy; total toleration is impossible in a political union. The EU must not delay, for the stake of stability, its response to apartheid, genocide, failure to concede lost elections, or turning the military on the population. However, some differences—even emotionally or morally difficult ones—are part of the European project’s bargain.
Just how much difference does the Hungarian Law ask pro-LGBT citizens and nations to tolerate? Whatever our personal views are on the content of the law, it is clear that the law is within the realm of “normal” European practice. It is in the “gray area” in which important and sensitive differences of opinion may occur without the EU being justified in using abusive humiliating rhetoric, juridical pressure, or financial punishments against Hungary.
Today, it seems easy to forget that until the last decade or so, teachers and TV shows simply did not deal with the topic of homosexuality or gender transitions as an end in themselves, if at all. Most countries did not require rules against this because the social norm was that it was not acceptable to discuss these topics with other people’s children. Hungary’s law evokes this era of a mere decade ago, not some far-off theocratic era.
Even in the Netherlands, where the authors reside, the Dutch constitution guarantees freedom of education, which means that Christian schools can determine themselves how to address homosexuality in class. Only last November one of Rutte’s own ministers defended this right in parliament, even though LGBT groups claim that potentially up to a third of Dutch schools teach essentially the same curriculum legislated in Hungary. Rutte defends policies in Dutch Parliament identical to the one for which he wants Hungary “brought to its knees” in the European Council.
Only 13 out of 27 EU members permit gay marriage. Germany, President von der Leyen’s home country, only introduced gay marriage in 2017. Most countries in the EU have legislation or other policies on what teachers and TV shows should and should not address. Several founding member states do not meet the standards von der Leyen and her allies are holding Hungary to. It is simply not true that, as von der Leyen would have us believe, Hungary’s LGBT law goes “against the fundamental values of the EU” that has hitherto existed.
Even a summary by Euractiv, a publication hostile to the law, fails to make the law sound as inflammatory as EU officials would have us believe. According to the law it will be:
[F]orbidden to make available for minors content that features any portrayal of sexuality as an end in itself, any deviation from the identity corresponding to one’s sex assigned at birth, sex reassignment, or promotion of homosexuality.
The law further states:
[w]hen educating students on sexual culture, sex life, sexual preferences, and sexual development … [t]hese activities cannot aim to promote deviation from the identity corresponding to one’s sex assigned at birth, sex reassignment, or homosexuality.
Further, only registered organisations registered with a “state agency defined by law” may teach on topics related to physical or mental development, and an explanatory memorandum specifically notes that “[o]rganisations of questionable professional credibility, created in many cases to represent certain sexual orientations,” are to be prevented from “influenc[ing] children’s sexual development with their so-called sensitivity trainings, causing severe damage to their physical, mental, and moral development.”
And finally, the law “makes it unlawful to broadcast an advertisement to minors if the advertisement portrays sexuality as an end in itself, or portrays or promotes deviation from the identity corresponding to one’s sex at birth, sex reassignment, or homosexuality.”
The law itself is only opaque if one (a) willfully anticipates the most extreme potential implementation of the law (a standard by which all laws would become worrying), or (b) sees the Hungarian state as a particularly unaccountable deliberately malicious actor. Among EU officials and many corners of the media, both of these assumptions seem at work.
Critics object, “What does ‘portrayal’ or ‘promotion’ mean? There is no legal standard!” There are, however, no legal standards for many verbs that routinely appear in law. Do we have reason to believe that Orban’s government, led by a party that has always stood for the decriminalization of homosexuality and has supressed no speech or protest on the issue, will suddenly decide that LGBT people should be barred from classrooms, because their existence might be viewed as a ‘portrayal’? Or will he, as the media insists, ban “Harry Potter” and “Friends” from airing in Hungary before late evening because those shows depict LGBT characters?
Even a cursory reading of the law dispels these fears. Characters from shows like “Harry Potter” or “Friends” are not teaching about sexual identity as ‘an end in itself.’ Hungary’s new law bans the sharing of information with minors in education, movies, and advertisements, that the government deems to be promoting gender transition or homosexuality. It is part of a law that originally only addressed paedophilia, but which now is more accurately described as a child standards and protection bill.
LGBT activists argue that the law will harm LGBT children by keeping them from accessing material that promotes acceptance. But the law regulates only public education and public broadcasting. LGBT materials are still available on the internet and from private organizations outside of schools, as was the norm until very recently. It is difficult to credibly argue that returning to the status quo of 2010—when acceptance towards LGBT issues reached a then all-time high and millenia-old norms were evaporating—as an oppressive dark age.
There are also worries that this law will be used to legitimize discrimination or even violence against LGBT individuals. However, it is unclear how this concern does not extend to other laws in EU nations that keep religious education out of public classrooms. Do these laws legitimize discrimination or even violence against religious people? With intolerance on the rise in Europe, particularly against traditional Christians and Orthodox Jews who also have teachings on (meta)physical, mental, and moral development barred from many public schools in Europe, it seems like a valid question—but the media is not asking it. Instead, media reporting fixates on the Hungarian law because that goes against the triumphalist progressive narrative en vogue among Western Europe’s elites.
The reality is that if the EU is allowed to “bring Hungary to its knees” for its stance on LGBT issues, other nations within Europe have reason to be nervous about their own fate. Hungary is not the only nation that rejected gay marriage: Italy, Estonia, the Czech Republic, and Greece have similar laws. Six years earlier than Italy and other nations, however, Hungary passed a 2008 law guaranteeing civil unions with all the rights of marriage. Hungary recognized cohabitating same-sex couples as couples in the late 1990s’—decades before Italy and other countries. If this context justifies allowing the EU to override a member state’s education, cultural, and media regulation, many member states, including core member states like Italy, have good reason to be concerned about their sovereignty.
Ultimately, as we will discuss next, Europe has a great deal of particularity left in her. The issue here is not Eastern Europe vs. Western Europe, or even traditionalist Europe versus progressive Europe. The issue is preserving real cultural diversity within a European Union.
Nations vs. the EU: A Fight the EU Will Not Win
Commission President von der Leyen’s actions should concern any member state or EU citizen, since they show that the EU can suddenly and aggressively intervene in domestic policy on any topic at any moment if a sufficiently large bloc demands it.
The vast majority of Europeans would resent being treated the way Hungary is currently being treated. Europeans desire considerable autonomy to determine how their country is run. Indeed, that autonomy was originally a key part of the bargain, the element that made the EU distinctive from the ever-more-centralized federal United States of America, especially on topics over which the EU has not been explicitly delegated authority—such as education, media, and child protection. Rutte’s and von der Leyen’s actions, if allowed to continue, set a precedent that could nullify the subsidiarity principle and any meaningful claim of national autonomy. This would fan the flames of Euroscepticism, and eventually more member states would likely follow the British example and leave the EU.
Federal politics is, by nature, fragile. Maintaining a balanced federal union is historically uncommon. Federations tend to collapse into de facto unitary states, as is arguably the case of Austria, or disintegrate into component states, as nearly happened to Canada in the 1990s. The EU has few of the factors necessary for a stable federal union. Compared with national governments, the EU is relatively weak—it has comparatively little tax revenue and no army or police. National-level politics in Europe attract far more attention than EU politics (how many Commissioners can you name?). Combine these realities with the flexibility of the EU’s secession-clause (article 25), and in a battle between national and European elites, national interests stand a much better chance. Just look at Brexit.
Fundamentally, the problem is that in Europe, political elites are playing to domestic constituencies. By taking this hard line, PM Rutte earns cover with his critics at no foreseeable domestic cost among his supporters. There is no structure in the EU that incentivizes national politicians to work for long-run European stability. In the absence of an enforcement mechanism that compels elites to follow the ‘golden rule’ of toleration, the European project could easily become the cause of the very conflict it was meant to avoid.
Naturally, PM Orbán hopes that the EU’s response to Hungary’s law will fan the populist and nationalist flames in Hungary and elsewhere. The coming Hungarian parliamentary elections are the most competitive in some time. By eliciting this strongly anti-national response, Orbán hopes to shift the debate from, amongst other things, corruption, realignment towards China, or the pushing of Christianity in a generally not very religious country, and back to his record as a champion of Hungarian society against wokeness and atomization. The role of national liberator is not new to Orbán: his track record in opposing Communism before 1990 sets him up to frame himself as a freedom fighter against a new kind of authoritarianism.
Orbán’s approach is likely to resonate with many EU citizens. Consider how the Netherlands, one of the loudest and most aggressive critics of Hungary’s law, would respond to being treated as Hungary is being treated. The Dutch also have cultural norms and laws which differ from the rest of Europe. In 2001 the Netherlands was the first country in the world to introduce gay marriage. The EU did not intervene to revoke this law. Nowadays, Dutch abortion and euthanasia legislation differs from the European norm, as does the focus on quality of life rather than the length of life in elderly care. Then there are Christian and Steiner/Waldorf schools, the Dutch tradition of being a tax haven, and voting no in multiple European referenda. Last but not least, many Dutch people love to dress up as Black Pete, which has been called racist. When members of the U.N. criticized this cultural norm, PM Rutte himself defended his culture, saying: “Guys. Folk traditions, come on. What Christmas songs you should sing, how you celebrate Christmas and Easter—this isn’t what politics is about.”
If the Netherlands was being attacked like Hungary over any of these topics, many Dutch citizens would be upset. They would recognize that these topics fall under Dutch sovereignty, and they would grow increasingly skeptical of the EU. Indeed, as one resident and one citizen of the Netherlands, these authors are in substantive disagreement with a number of our more peculiar laws, yet we would immediately respond with the most extreme prejudice to the EU using legal and fiscal means to bring the Dutch government and polity “to its knees.”
This little thought experiment should reveal just how explosive is the political dynamite with which EU elites are toying. EU treaties include the subsidiarity principle for good reason. There are immense differences in opinion between the populations of the EU member states, just like one would expect from a political constellation containing 27 countries and spanning the width and breadth of a continent. To avoid major conflicts while maintaining a political union, there are only two options. The first is to suppress the opposition, as the Soviet Union and China have done. When Gorbachev implemented his democratic reforms, he quickly found that there was little keeping the USSR’s many ethnicities together besides Moscow’s strong arm. The second option is to take the federal road, as the United States and the EU have done so far. This requires significant autonomy for lower governments.
When a federation discusses divisive topics at the federal level, it can be dangerous. This is how federations dissolve: when irreconcilable differences translate into political factions. Every major political crisis in US history has emerged over a sudden centralization of authority by the federal government. Think of the American Civil War, waged because the federal government abolished slavery, or the major conflicts nowadays about various social and cultural changes. EU members can invoke Article 25 at any moment to leave the EU, so similar federal-level conflict within the EU could drive member states away. As Brexit showed, the economic, social and political costs of this would be enormous—possibly fatal to the EU.
Rutte and von der Leyen are playing with fire in their heated response to Hungary’s law. They appear to be advocating for the use of any means, short of violence, to put Hungary under pressure over policies that are not substantially different from the European norm 15 years ago, or even nowadays in both the corners and core of the European project. This aggressive violation of the golden rule goes against the heart of the European project: the subsidiarity principle. If this becomes the norm for how to deal with intra-European disagreements, it will jeopardize the peace and prosperity we all value—dearly, yes, but not at any cost.
All European Conservatives Need to Take This Seriously
European conservatives today tend to hold a negative view of the European project. However, it is worth recalling that European unity was a Christian Democratic project born of the dreams not of Enlightenment nationalists but anti-Jacobin statesmen. There is a solid conservative case for a strong, highly pluralist, European Union.
However, there is an equally solid conservative case against a European Union that moves in the direction we see the EU moving now. Europhiles have always said that they are against a homogenizing and undemocratically accountable superstate, and it is on these grounds that these authors support the European project. Because, ultimately, no EU is better than a homogenizing, unaccountable superstate. Today, however, progressive pro-European parties are doing what Eurosceptics have always warned of: subjecting national interests to the particular values of certain Western nations.
Ironically, often those who have been most enthusiastic about the European project seem the most willing to jeopardize it to pursue other goals. The willingness of the EU to punish Hungary for its LGBT law needs to be exposed as the fundamental danger it is to the interests of all Europeans, Eurosceptic and pro-EU alike. A divided Europe is, in the long run, likely a conquered Europe, but imposing progressive homogeneity is not the path to sustainable unity.
Europe needs statesmen prepared to defend the rules and norms that keep Europe whole, and denounce efforts to punish member states for unpopular decisions. No member state wants to surrender as much sovereignty as Hungary is being asked to give up. If Brussels can nullify the sovereignty of the member states at any moment, the EU’s diverse federal character is fundamentally damaged.
Eurosceptic conservatives and populists have an important part to play as well. A Union that continues down its current path will inflict a great deal of damage before it fails. Eurosceptic conservatives are already coming out in force to stand by Hungary. Even if they fail in their ultimate aims of leaving or dissolving the EU, they can help strengthen the hands of pro-European conservatives by showing the alternative to moderation.
Either way, it is up to conservatives to either keep the EU true to its fundamental values or to end it before its betrayal of those values does lasting harm to all Europeans. Even the Europhiles of yesteryear would acknowledge that a tyrannical, homogenous EU is worse than none at all.
Brandon Zicha is an Assistant Professor of Policy Science at Leiden University in the Netherlands.
Joes Gordon de Natris is a Ph.D. candidate at the University of Groningen in the Netherlands.
The views expressed by the authors are their own and do not reflect the views or positions endorsed by their employers.