Same-Sex Spouses Should Have EU Residency Rights, Court Is Told
Posted January 11, 2018 1:25 p.m. EST
BUCHAREST, Romania — Same-sex spouses should be afforded the same rights to live and work across the European Union as married heterosexual couples, regardless of individual member countries’ stance on same-sex marriage, a senior legal adviser to the European Union’s top court said Thursday.
The opinion, related to a case before the Court of Justice involving a Romanian man and his American husband, is not binding, but the court generally follows such advisories.
“Although member states are free to authorize marriage between persons of the same sex or not, they may not impede the freedom of residence of an EU citizen by refusing to grant his or her spouse of the same sex, a national of a non-EU country, a right of permanent residence in their territory,” the senior adviser, Advocate General Melchior Wathelet, said in a statement the court released.
Adrian Coman, a Romanian, and Claibourn Robert Hamilton, an American, married in Belgium in 2010, seven years after the country legalized same-sex marriage. A few years later, Romania denied Hamilton spousal residency rights, however, arguing that he could not be considered the spouse of an EU citizen given that Romania does not recognize same-sex marriage.
The couple, who live in the United States, filed suit in Romania in 2013.
EU laws guarantee citizens of member states and their family members the right to move and freely reside in any country in the bloc, subject to certain conditions, raising questions about the legal rights of same-sex spouses in countries where such unions are not legal.
Romania decriminalized homosexuality in 2001 but prohibits marriage between people of the same sex, and does not recognize same-sex marriages carried out abroad. It is one of six EU countries with no legal recognition of same-sex relationships, along with Bulgaria, Latvia, Lithuania, Poland and Slovakia.
In November 2016, Romania’s Constitutional Court requested an interpretation of European Union law from the Court of Justice.
“Starting this litigation, we realized that we had to take it to the end, whatever the end was,” Coman said in an interview in November, when the European court, based in Luxembourg, began examining the case.
Wathelet’s opinion was well received on Thursday by groups in Romania and across Europe that represent the rights of lesbian, gay, bisexual and transgender people.
“The points raised by the advocate general’s opinion are very encouraging,” ILGA-Europe, a Brussels-based advocacy group for gay and transgender rights, said in a statement on their website.
Florin Buhuceanu, president of the Romanian advocacy group Accept, said that “such an inclusive definition of what family is in the 21st century will send a very clear sign to Romanian politicians.”
Thirteen countries in the EU allow same-sex marriage, while a further nine have civil unions or something similar.
In his opinion to the court, Wathelet pointed to the general evolution of views on same-sex marriage in member states during the last decade, adding that according to the definition generally accepted by the member states, the idea that marriage means a union between two persons of the opposite sex “can no longer be followed.”
The role of the 11 advocates general is to propose independent solutions for cases the Court of Justice is deliberating on. While their opinions are not legally binding, their voices are influential and tend to have a strong effect on the decisions of the court.
Iustina Ionescu, a lawyer for the couple, expressed optimism on Thursday about the prospects for her clients’ case after the advocate general’s recommendation.
“If his opinion will be accepted by the courts, it will mean jurisprudential change in the definition of ‘spouse’ according to EU law,” she said. “Now that we’ve managed to convince him, we are more confident that we will be able to convince the 15 judges to accept our interpretation of the directive.”