Dr Alina Tryfonidou, Associate Professor in EU Law, University of Reading

Photo: Mr Adrian Coman (right) with his spouse, Mr Claibourn Robert Hamilton (left)

(picture from PinkNews http://www.pinknews.co.uk/2016/11/29/romania-goes-to-court-over-whether-to-recognise-gay-couples-marriage/)

Introduction

The question of legal recognition for same-sex relationships has become a major topic in recent decades, sparking intense discussions globally in legislative bodies, courts, and the media, with strong opinions on both sides. This complex and delicate issue intersects with human rights, religious beliefs, moral perspectives, traditions, and constitutional principles like equality, personal freedom, and inherent human worth. While studies highlight the advantages, particularly for young LGBTQ+ individuals, of extending marriage rights to same-sex couples, many religions and churches hold opposing views, often rooted in the belief that homosexuality is a sin. These stances can fuel negative societal attitudes towards LGBTQ+ individuals, especially in deeply religious societies. The decision to legally recognize same-sex relationships, where implemented, doesn’t resolve the debate entirely. Instead, it prompts new questions regarding the legal status of such couples, their eligibility to adopt children jointly, and the rights of same-sex couples to pursue options like surrogacy (for gay couples) or state-funded medically assisted insemination (for lesbian couples).

Until recently, Europe held a reputation for being progressive on LGBTQ+ rights, with Denmark pioneering same-sex registered partnerships in 1989 and the Netherlands leading the way with same-sex marriage in 2001. All western European Union members now legally recognize same-sex relationships, with some affording them equal treatment to opposite-sex couples. Conversely, most eastern European countries haven’t taken this step, with several even incorporating constitutional bans against same-sex marriage, including Bulgaria, Croatia, Hungary, Latvia, Lithuania, Poland, and Slovakia.

The European Union has avoided a definitive stance on legally recognizing same-sex relationships, deeming it a matter for individual member states to decide. However, this raises complex issues when same-sex couples exercise their EU right to free movement. Should a member state that doesn’t recognize same-sex relationships be compelled to acknowledge a same-sex marriage legally performed in another member state? This question is at the heart of the Coman case (Case C-673/16) currently before the European Court of Justice (ECJ). The outcome is highly anticipated by LGBTQ+ advocacy groups, legal experts, scholars specializing in LGBTQ+ rights, and married same-sex couples seeking clearer protection under EU law when exercising their freedom of movement.

LGBT Rights in Romania

Romania currently lacks any legal framework recognizing same-sex partnerships, and recent parliamentary attempts to change this have been decisively rejected. The country’s Civil Code explicitly prohibits same-sex marriages and registered partnerships, both domestically and those performed abroad. As a deeply religious nation with low public acceptance of LGBTQ+ rights, a 2016 petition garnered 3 million signatures within six months, advocating for a constitutional amendment defining marriage as solely between a man and a woman. This initiative, backed by the US-based Liberty Counsel and the influential Romanian Orthodox Church, highlights the societal resistance to legal recognition of same-sex relationships.

Romania’s score on ILGA Europe’s Rainbow Map is among the lowest, reflecting limited legal protections for LGBTQ+ individuals and couples. This aligns with public opinion surveys showing lower-than-average EU support for these rights. The Coman case marks the second time Romania’s treatment of LGBTQ+ rights has been brought before the ECJ.

The Coman Case

Adrian Coman, a Romanian LGBTQ+ advocate, married his American partner, Claibourn Robert Hamilton, in Belgium in 2010. When the couple, residing in the US, sought a residence permit for Mr. Hamilton in Romania in 2012, it was denied because their marriage wasn’t legally recognized. This prompted legal action alleging a violation of Mr. Coman’s EU free movement rights and discrimination based on sexual orientation, contrary to the EU Charter of Fundamental Rights (EUCFR). This case eventually led to the Romanian Constitutional Court referring key questions to the ECJ:

a) Does the term “spouse” in Article 2(2)(a) of Directive 2004/38 encompass same-sex spouses, and if so, does the Directive obligate the host Member State to grant residency rights exceeding three months to the same-sex spouse of a migrant EU citizen?

b) If the answer to the previous question is negative, can the same-sex spouse of a migrant EU citizen be categorized as “any other family member” under Article 3(2)(a) or as “the partner with whom the EU citizen has a stable relationship” under Article 3(2)(b) of the Directive? If categorized as such, is the host Member State obligated to facilitate entry and residence for the same-sex spouse, even without legal recognition of same-sex marriage or alternative legal frameworks for same-sex partnerships?

The hearing, scheduled for March 30, 2017, garnered significant media attention and prompted interventions from various Romanian and international NGOs.

The Issue in a Nutshell

While not explicitly mentioned in the EU Treaties, family reunification rights for EU citizens exercising free movement have existed since the 1960s. This principle recognizes that citizens moving between Member States to further EU objectives need the right to be accompanied by their close family members. Currently, Directive 2004/38 governs these rights, focusing on citizens residing in a Member State other than their home country. Importantly, “returnees” – citizens returning home after exercising their free movement rights – also benefit from these rights, clarified in legal precedent like the Singh case. As the Coman case involves a “returnee,” the questions raised pertain to interpreting the Directive, which applies “by analogy.”

Historically, the “spouse” of a migrant EU citizen (as per Article 2(2)(a) of Directive 2004/38) enjoys the right to reside in the destination Member State. This right, applicable regardless of the spouse’s nationality (EU citizen or third-country national), aims to prevent barriers to free movement. Notably, these rights are frequently used by EU citizens married to third-country nationals who don’t independently qualify for free movement under EU law.

The crux of the Coman case hinges on whether “spouse” in this context encompasses the same-sex spouse of an EU citizen who has exercised free movement rights. Directive 2004/38 lacks clarity on this, using the gender-neutral term “spouse” without defining its scope. Despite being raised during the Directive’s drafting, the issue remains unresolved due to its sensitivity and differing views among member states. Consequently, the responsibility to clarify “spouse” falls upon the ECJ, with Coman being its first opportunity to do so. This case holds particular significance as a previous attempt to clarify “registered partner” in the same Directive, the Cocaj case (C-459/14), was withdrawn before the ECJ could rule.

What Must the Court rule?

The 2015 US Supreme Court ruling in Obergefell v. Hodges definitively addressed the legal recognition of same-sex relationships in the United States. The court mandated all states to legalize same-sex marriage and recognize such unions performed in other states. Their decision was rooted in the Fourteenth Amendment’s Due Process and Equal Protection Clauses, emphasizing the fundamental right to marry and prohibiting discrimination against same-sex couples. This landmark ruling solidified the US’s progressive stance on LGBTQ+ rights.

Can Coman offer the EU a similar opportunity to reaffirm its position as a champion for LGBTQ+ rights, even surpassing the US in areas like workplace discrimination protections? While the EU already provides some protection against sexual orientation discrimination in employment, which is absent at the federal level in the US, Coman focuses solely on the cross-border implications of legal recognition for same-sex marriage, not whether the EU can compel member states to legalize it domestically. Existing case law confirms that regulating marital status falls under the purview of individual Member States.

The question at hand is whether the ECJ should interpret “spouse” within Directive 2004/38 to include same-sex spouses, effectively mandating all Member States, regardless of their domestic laws, to grant residency to same-sex spouses of EU citizens exercising free movement.

There are compelling arguments in favor of this interpretation.

Firstly, excluding same-sex spouses essentially permits Member States to limit the free movement rights of LGBTQ+ citizens in same-sex marriages. The prospect of relocating without one’s spouse or facing legal non-recognition of their relationship (impacting taxes, social security, inheritance, etc.) would undoubtedly deter many from exercising this fundamental EU right. This existing uncertainty acts as a barrier to free movement. The ECJ cannot interpret EU law in a way that enables Member States to infringe on other aspects of EU law, especially fundamental rights. Since restricting free movement based on non-recognition of same-sex marriage infringes on fundamental human rights, it’s unlikely to be justifiable.

Secondly, the ECJ, bound by the EUCFR, must ensure its interpretation of Article 2(2)(a) doesn’t violate the prohibition against sexual orientation discrimination outlined in Article 21. Excluding same-sex spouses constitutes direct discrimination and contradicts both the Charter and Recital 31 of Directive 2004/38, which calls for non-discriminatory implementation.

Thirdly, aligning with the ECtHR’s recent judgment in Pajić v Croatia regarding family reunification rights of unmarried same-sex couples, the ECJ must consider Articles 7 and 20 of the EUCFR. Refusing to recognize legally valid same-sex marriages from other Member States and subsequently denying family reunification rights amounts to a breach, as it treats same-sex couples differently from opposite-sex couples who enjoy automatic rights under EU law. While Article 7 alone may not guarantee entry for spouses, interpreting it alongside Article 20 necessitates that same-sex spouses be granted entry under the same conditions as opposite-sex spouses.

Fourth, drawing parallels with Obergefell v. Hodges, denying recognition of same-sex marriages as valid for Directive 2004/38 could breach the right to human dignity (Article 1 EUCFR). Denying individuals the right to formalize their relationships and secure legal recognition for them undermines their autonomy and dignity. This reinforces a hierarchy of relationships, treating LGB individuals as inferior, violating their right to human dignity by failing to recognize their choices.

Finally, taking cues from ECtHR case law, interpreting Directive 2004/38 in a way that doesn’t recognize same-sex spouses as “spouses” could infringe upon the right to family life (Article 7 EUCFR). Relegating them to a different category under Directive 2004/38 not only violates Article 7 but also creates a disadvantage by removing the automatic right to be joined by their spouse in another Member State, further hindering free movement.

While the ECJ held a heteronormative view of marriage in 2001 (D and Sweden v. Council), subsequent judgments affirmed that the EU recognizes same-sex marriages as legally binding for matters within EU law, such as the EU Staff Regulations (see the W case). Therefore, the ECJ should definitively declare that all Member States must recognize same-sex marriages legally performed in other Member States for matters falling under EU law, including Directive 2004/38, regardless of their own legislation on same-sex marriage. This ensures that individuals in same-sex marriages are recognized as “spouses” throughout the EU, promoting consistency and upholding their rights.

Barnard & Peers: chapter 13

Further Reading:

U. Belavusau and D. Kochenov, ‘On the “Entry Options” for the “Right to Love”: Federalizing Legal Opportunities for LGBT Movements in the EU’ EUI Working Paper Law 2016/09 available here

C. Bell and N. B. Selanec, ‘Who is a “spouse” under the Citizens’ Rights Directive? The prospect of mutual recognition of same-sex marriages in the EU’ (2016) 41 European Law Review 655

C. Cojocariu, ‘Same-Sex marriage before the courts and before the people: the story of a tumultuous year for LGBT rights in Romania’, VerfBlog, 25/1/2017

M. Fichera, ‘Same-Sex Marriage and the Role of Transnational Law: Changes in the European Landscape’ (2016) 17 German Law Journal 383 (available here)

N. Markard, ‘Dropping the Other Shoe: Obergefell and the Inevitability of the Constitutional Right to Equal Marriage’ (2016) 17 German Law Journal 509 (for an analysis of Obergefell) (available here)

S. Titshaw, ‘Same-Sex Spouses Last in Translation? How to Interpret “Spouse” in the EU Family Migration Directives’ (2016) 34 Boston University International Law Journal 45 (available here)

A. Tryfonidou, ‘EU Free Movement Law and the Legal Recognition of Same-Sex Relationships: The Case for Mutual Recognition’ (2015) 21 Columbia Journal of European Law 195