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European Union countries should recognise same-sex marriages, says European court’s senior adviser

Josh Jackman January 11, 2018
TOPSHOT - Two women react during the Gay Pride parade on September 17, 2017 in Belgrade. Serbia's lesbian prime minister on September 17 joined hundreds of activists with rainbow flags for Belgrade's annual gay pride march, an event held under heavy security in the conservative country. Belgrade's first Pride march, in 2001, ended with police firing in the air to disperse anti-gay nationalists and skinheads who stoned and beat participants. / AFP PHOTO / ANDREJ ISAKOVIC (Photo credit should read ANDREJ ISAKOVIC/AFP/Getty Images)

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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.

Adrian Coman and Claibourn Robert Hamilton

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.

Belgian advocate general Melchior Wathelet wrote today that EU countries must recognise same-sex spouses in the same ways that they do straight spouses.

Belgium's State Secretary,  Melchior Wathelet addresses journalists during a press conference in Sarajevo, on November 12, 2010. Wathelet arrived on a one-day official visit to Bosnia and Herzegovina for a series of meetings with the country's top officials from Bosnia and Herzegovina concerning visa-free travel to European countries, and potential consequences in case of systematic abuse of the newly adopted visa-free travel regime for Bosnia and Albania. AFP PHOTO/ELVIS BARUKCIC (Photo credit should read ELVIS BARUKCIC/AFP/Getty Images)
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“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.

State Secretary for Energy, Mobility, Environment and State Reform Melchior Wathelet talks during a press conference to present solutions for the noises of airplane flights over Brussels, on May 6, 2014, in Brussels. AFP PHOTO /NICOLAS MAETERLINCK        (Photo credit should read NICOLAS MAETERLINCK/AFP/Getty Images)
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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.”

A couple kiss as one of them holds a rainbow flag the WorldPride 2017 parade in Madrid on July 1, 2017. Revellers took to the rainbow streets of Madrid today in the world's biggest march for gay, lesbian, bisexual and transgender rights. Carried along by the slogan "Viva la vida!" (Live life!), the parade of 52 floats started partying its way through the centre later afternoon in celebration of sexual diversity, under high security.    / AFP PHOTO / OSCAR DEL POZO        (Photo credit should read OSCAR DEL POZO/AFP/Getty Images)
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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.

Belgium's  State Secretary for Energy, Mobility, Environment and State Reform Melchior Wathelet (cdH French-speaking christian democrats) arrives  arrives at the Prime Minister's office for a Kern meeting, a restricted ministers cabinet, at the 16 Law Street (16 rue de la Loi / 16 Wetstraat) in Brussels on May 3, 2013. AFP PHOTO / BELGA - BRUNO FAHY        (Photo credit should read BRUNO FAHY/AFP/Getty Images)
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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!

Participants of the Gay Pride kiss, on June 7,2014, in Bucharest, Romania. AFP PHOTO / ANDREI PUNGOVSCHI        (Photo credit should read ANDREI PUNGOVSCHI/AFP/Getty Images)
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“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.

BELFAST, NORTHERN IRELAND - AUGUST 05: A drag queen and a participant dressed as Donald Trump wave to the cowd as Belfast Gay Pride takes place on August 5, 2017 in Belfast, Northern Ireland. The province is the only part of the United Kingdom which does not recognise same sex marriage. The Irish Republic's first gay prime minister Taoiseach Leo Varadkar today predicted it is only a matter of time before same sex marriage is legalised in the north. Mr Varadkar was speaking at a Pride breakfast event. (Photo by Charles McQuillan/Getty Images)
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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.

Belgian state secretary for Immigration and Asylum Melchior Wathelet gives a press conference after Justice and Home Affairs council on December 2, 2010 at the EU headquarters in Brussels. The Council is expected to authorise the opening of negotiations for agreements between the European Union and Australia / Canada / the United States for the transfer and use of Passenger Name Record (PNR) data.  AFP PHOTO  GEORGES GOBET (Photo credit should read GEORGES GOBET/AFP/Getty Images)
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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.

Kim Davis spent several days in prison for refusing to comply with court orders

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.

State Secretary for Energy, Mobility, Environment and State Reform Melchior Wathelet talks during a press conference to present solutions for the noises of airplane flights over Brussels, on May 6, 2014, in Brussels. AFP PHOTO/ NICOLAS MAETERLINCK        (Photo credit should read NICOLAS MAETERLINCK/AFP/Getty Images)
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“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.”

More: Belgium, Europe, Europe, European Court of Justice, European Union, Law, Melchior Wathelet, romania, Romania, same sex marriage, US

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