EU member states need to respect the freedom of residence of same-sex spouses in the European Union, regardless of whether they recognize same-sex marriages or not, according to a ruling European Court of Justice (CJEU).

The CJEU ruling was made in the case of Relu Adrian Coman, a Romanian national and Robert Clabourn Hamilton, an American national, who were married in Brussels in 2010.

The couple wanted to be able to live in Romania, one of the six EU member states that does not recognize same-sex marriages. The Romanian authorities declined to grant Hamilton a right of residence because the country does not recognize marriages between same-sex couples conducted abroad. The couple sued the General Inspectorate for Immigration and the Ministry of Internal Affairs in 2013, and at the end of 2015 the case reached Romania’s Constitutional Court (CCR). The following year, the Constitutional Court decided to refer the case to the CJEU, seeking clarification on the meaning of the term “spouses” in the EU rules on freedom of movement. It was the first time that Romania’s Constitutional Court referred questions to the CJEU.

On June 5, the European Court of Justice ruled that the term “spouse” within the meaning of the provisions of EU law on freedom of residence for EU citizens and their family members includes spouses of the same sex.

“Although the Member States have the freedom whether or not to authorize marriage between persons of the same sex, 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 CJEU said.

After the CJEU ruling, the case is to return at the Constitutional Court.

“The CJEU is answering without hesitation to the question of the constitutional judges: all families, regardless of the sexual orientation of the partners, have equal rights in the area of free movement. The CCR now needs to respect the CJEU decision and find that Adrian and Clai are a family. The decision does not compel Romania to introduce the same-sex marriage, it only compels the recognition of the legal effects of an already registered relationship, such as the right to establish residence in Romania for Clai, who is a US citizen,” Iustina Ionescu, the lawyer representing the couple, explained.

“We can now look in the eyes of any public official in Romania and across the EU with certainty that our relationship is equally valuable and equally relevant, for the purpose of free movement within the EU. We are grateful to the EU Court and to the many people and institutions who have supported us, and through us, other same-sex couples in a similar situation. It is human dignity that wins today,” Adrian Coman commented.

Romania decriminalized homosexuality in 2002. Same-sex couples do not enjoy any legal protection in the country.

Two draft bills on civil partnership have been submitted to the Parliament this year. Last month, the ruling party leader Liviu Dragnea said the PSD was working on a draft law that would make the civil partnership possible. Meanwhile, a citizens’ initiative aims to change the definition of family in Romania’s Constitution. At present, the Constitution defines the family as the free-willed marriage “between spouses”. However, the initiative’s promoters want to amend it so that it mentions that a family is the union between a man and a woman. The initiative was adopted by the Chamber of Deputies.

Love in the time of courts: Two men against the Romanian state

editor@romania-insider.com