European Union countries should recognise same-sex marriages, says European court’s senior adviser
Married same-sex couples should have the same right to freedom of movement as straight spouses, a senior adviser to the European Court of Justice has said.
The opinion was released as the ECJ hears the case of Romanian Adrian Coman, who tied the knot with his American partner, Claibourn Robert Hamilton, in Belgium in 2010.
Despite their legal marriage in a fellow European Union state, Romania is resisting the activist’s attempts to gain residency rights for his husband, as it does not allow same-sex marriage.
“While Member States are free to provide for marriage between persons of the same sex in their domestic legal system or not, they must fulfil their obligations under the freedom of movement of EU citizens,” he said.
Wathelet added that “the concept of ‘spouse’ within the meaning of the directive also includes spouses of the same sex.
Accordingly, such a person may also reside on a permanent basis in the territory of the Member State in which his or her spouse is established as an EU citizen after exercising his or her freedom of movement.
“That conclusion also applies in respect of that citizen’s country of origin, when he returns there after residing on a permanent basis in another Member State in which he has developed or consolidated a family life, as Mr Coman has done with Mr Hamilton in the present case.”
The senior adviser also stated that “in the area of family reunification, the objective of protecting the traditional family cannot justify discrimination on grounds of sexual orientation.”
The ECJ’s 28 judges are not bound by the opinions of the advocate generals, but follow them in the majority of cases.
More than a dozen EU countries have not legalised marriage equality, including Italy, Greece and Slovenia, but Wathelet was at pains to emphasise that this case was not about same-sex marriage.
In his opinion, he wrote – in bold – that “the legal issue at the centre of the dispute is not that of the legalisation of same-sex marriage, but that of the free movement of EU citizens”
Sophie in ‘t Veld, the Vice President of the European Parliament’s LGBTI Intergroup, told PinkNews: “This is fantastic news and a landmark opinion for rainbow families!
“Freedom of movement is a right of all EU citizens, it cannot be restricted because of whom they love. The European Union protects our rights.”
If Coman’s bid is successful, the ruling would be controversial in Romania, where US evangelicals have pushed a law to ban same-sex marriage.
The country is moving towards holding a referendum on whether same-sex unions should be constitutionally banned and made illegal.
Anti-gay US evangelicals have rallied behind the push.
Last year, Kentucky clerk Kim Davis travelled to Romania with the Liberty Counsel, a right-wing Christian law group defined as an anti-LGBT hate group by the Southern Poverty Law Centre.
In a message to supporters, the group bragged about its interventions in the eastern European country in a bid to secure a ban on same-sex marriage.
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The group said: “Liberty Counsel continues to assist the citizens of Romania who are working on a nationwide constitutional referendum that would modify their Constitution to clarify that marriage is the foundational and fundamental societal institution and is naturally defined as the union of one man and one woman.
“Romania’s Constitutional Court recently approved and confirmed more than three million citizen signatures (in a country of less than 20 million people) calling for the national referendum.
“Liberty Counsel provided that Court with an amicus brief in defence of natural marriage, to counter numerous briefs filed by Soros-backed non-governmental organisations, which called on Romania to abandon its national sovereignty and cede the definition of the family to the European Union.”