EU Court Backs Same-Sex Marriages in Immigration Ruling
Posted June 5, 2018 7:55 p.m. EDT
BUCHAREST, Romania — All European Union countries must recognize same-sex marriage, at least in relation to immigration cases where one partner is a citizen of the bloc, its highest court ruled Tuesday.
The verdict was an important victory for LGBT rights groups, which have long argued that same-sex spouses of EU citizens should be afforded the same basic right to live and work across the bloc’s 28 countries as heterosexual spouses, regardless of individual countries’ stances on same-sex marriage.
It also highlighted growing tensions between the bloc’s core institutions and some of its newer, more socially conservative member states.
Six EU countries — all of them former Eastern Bloc nations that joined the union in the 21st century — have yet to legalize same-sex marriages or civil unions. In a statement issued along with its verdict, the European Court of Justice in Luxembourg said they remained free not to do so.
But, the court added, “They may not obstruct the freedom of residence of an EU citizen by refusing to grant his same-sex spouse, a national of a country that is not an EU member state, a derived right of residence in their territory.” The decision came a day after the U.S. Supreme Court ruled, in another closely watched case, that a baker could refuse to make a wedding cake for a gay couple.
As different as the two cases — and their results — were, the decisions had something important in common: The judges did not treat them as being about gay rights. The U.S. case was decided on fairly narrow procedural grounds and the baker’s religious beliefs while the European court based its ruling on the free movement of people.
The case before the court involved a Romanian activist, Adrian Coman, and his American husband, Claibourn Robert Hamilton, who were married in Belgium in 2010.
When they tried to move to Romania a few years later, the country denied Hamilton spousal residency rights, as it does not recognize same-sex marriage.
The couple, who now live in the United States, filed suit in Romania in 2013.
The Court of Justice took up the case in November 2016, after Romania’s Constitutional Court requested an interpretation of EU law.
For LGBT rights groups, the verdict has been a long time coming.
“In 2004, when the freedom of movement directive was adopted, the term spouse was deliberately left vague. Since then, same-sex couples have been left in a legal limbo, in uncertainty,” said Katrin Hugendubel, the advocacy director at ILGA-Europe, a Brussels-based group that promotes gay and transgender rights.
With this case, she added, the court has clarified that all EU member states need to recognize marriages carried out in other member states and that all European citizens and their spouses have “full freedom of movement, which is one of the four fundamentals of the European Union.”
Romania decriminalized homosexuality only in 2001, and it joined the European Union in 2007.
The court’s verdict came at an important moment, with a referendum expected in the coming months on whether to change the constitutional definition of marriage to specify that it must be a union between a man and a woman.
The referendum, which came about after a 2016 petition gathered 3 million signatures, would make it harder for the country to legalize same-sex marriages in the future.
“This is a worrying time for all of us who want to live in a more inclusive society,” said Florin Buhuceanu, president of the Romanian advocacy group Accept.
“We are living in the 21st century, in the EU,” he added. “It is the right time to start recognizing these families as families.”
Thirteen of the EU’s 28 member states currently allow same-sex marriage, while a further nine allow civil unions or something similar. Bulgaria, Latvia, Lithuania, Poland, Romania and Slovakia have neither.
Robert Wintemute, a professor of human rights law at King’s College London, said the principle that spouses include same-sex partners will be immediately binding for all courts in the bloc’s current members and for those in any countries that join later.
It could also put pressure on the six member states without legal recognition of same-sex unions to introduce some form of legislation, he added. The verdict was widely expected. In January, Advocate General Melchior Wathelet, a senior legal adviser to the court, issued an opinion that highlighted the evolution of member states’ views on same-sex marriage over the previous decade.
Definitions of marriage as a union only between two people of the opposite sex were no longer generally accepted by EU countries, he said.
The couple’s lawyer, Iustina Ionescu, described the case as “not just about same-sex marriage but about what the EU stands for — dignity, equality, respect for basic freedoms for all of us.”
And while the ruling is limited to same-sex couples married in a European member state, Ionescu believes the verdict suggests that any future case brought by a couple married outside the bloc would be successful.
Coman said in an interview that he had dreamed about this moment for a long time, adding, “I can barely believe it.”
Still, he said, he had been optimistic about the eventual verdict. “Come on, it’s 2018, it’s one of the core freedoms of the EU,” he said. “But we didn’t expect it to take this long.”