Same-sex couples must be recognized by every member of the European Union (EU), even if a country does not have Marriage Equality, so says the European Court of Justice. The opinion is being hailed as a major step forward for Equal Rights for all.
The European Union’s top lawyer Melchior Wathelet, an Advocate General of the Luxembourg court, said same-sex spouses now have standing in all countries even where governments have implacably opposed Marriage Equality.
Opinions given by European Court of Justice (ECJ) Advocate Generals are non-binding on the court’s judges but are almost always followed by the full court. A final decision will be delivered sometime this year.
Wathelet’s opinion was given in the case of a Romanian citizen, Adrian Coman, who wanted to live together with full rights and benefits in Romania with his American husband, Claibourn Robert Hamilton. The couple had been together for four years in the USA before marrying in Brussels in 2010.
Romania prohibits marriage between people of the same sex. It is one of six European Union member countries: Poland, Slovakia, Bulgaria, Lithuania and Latvia, that do not have Marriage Equality.
Romanian authorities refused to grant a right of residence because Hamilton could not be classified in Romania as the spouse of an European Union citizen. The couple appealed to Romania’s Constitutional Court, which referred it to Luxembourg.
Wathelet said that governments may not impede the freedom of residence of an European citizen by refusing to grant his or her spouse, who is a citizen of a non-EU country, a right of permanent residence. He explained that European Union law remains neutral on the gender of a spouse.
A 2004 directive by the European Union grants rights to an EU citizen’s spouse, without specifying how spouse is defined.
The ECJ’s final determination, when it comes, could have wider repercussions for the range of benefits and rights that may be claimed by people in same-sex marriages by ensuring that the term “spouse” is gender neutral in law.
Wathelet told the court that the EU gives spouses of EU nationals the right to live and work anywhere in the union. It only defines spouse with reference to a relationship based on marriage and was neutral about the sex of the persons concerned and the place where the couple was married.
“In view of the general evolution of the societies of the member states of the EU in the last decade in the area of authorization of same-sex marriage it was no longer appropriate to follow the case law definition of marriage as ‘a union between two persons of the opposite sex’.”
The Netherlands has had Marriage Equality since 2001. Germany, Finland and Malta joined in 2017. Austria will have same-sex marriages in 2019. In 2015, Ireland became the only country in the world to have Marriage Equality by popular vote.
Today, 15 European countries recognize Marriage Equality: Belgium, Denmark, Finland, France, Germany, Iceland, Ireland, Luxembourg, Malta, Netherlands, Norway, Portugal, Spain, Sweden and the United Kingdom (soon to Brexit).
Member of the European Parliament (MEP) Sophie In’t Veld of Netherlands said:
“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.”