A Step Forward for Equal Marriage Rights in the European Union
By Simon Cox
Rights of same-sex couples have been given an important boost by the Court of Justice of the European Union, which interprets EU law across the 28 member states. In a ruling issued on June 4, the court ruled that same-sex spouses who married an EU migrant in an EU country must now be recognized as having the same rights as opposite-sex spouses across the EU. The ruling does not require member states to allow same-sex couples to marry, but it does give all legally married couples the same EU law rights.
The case, Coman v. Romania, centered on Adrian Coman—a Romanian national—who wanted his husband, Claibourn Robert Hamilton, an American citizen, to be able to live with him in Romania. The couple had lived and married in Belgium, where the law allows same-sex marriage. Then they moved to Romania, where Hamilton was refused a residence permit on the ground that Romanian law does not allow same-sex marriage, and does not recognize foreign same-sex marriage. Coman and Hamilton challenged the refusal as a prohibited act of discrimination on grounds of sexual orientation, and the constitutional court asked the Court of Justice for a ruling on EU law.
Under EU law, citizens of EU member states have the right to reside in other member states and to have their spouse live with them. The Court of Justice ruled that “spouse” includes any party to a marriage lawfully conducted in a member state. Because Hamilton had married Coman in Belgium, they count as spouses under the EU law of free movement of persons.
The court’s ruling was a cautious one. Rejecting Coman’s case could have opened the door to member states using their laws to challenge recognition of other member states civil status decisions on broader questions of marriage, divorce, and parentage. The court explicitly recognized that the judgment does not require Romania to introduce same-sex marriage. Romania is required to recognize—for free movement rights—marriages conducted lawfully in other EU member states.
Fourteen EU member states already allow same-sex couples to marry. Since 2001, when the Netherlands legalized same-sex marriage, more than 120,000 marriages have been celebrated in the EU, with 40,000 in each of France and Spain, and around 20,000 to date in each of the Netherlands and the UK. But only a small proportion of EU citizens take up residence in another state.
So it will remain unusual for a same-sex couple to need EU law rights in one of the fourteen EU states which bar same-sex weddings: Cyprus, Lithuania, Latvia, Hungary, Poland, Czech Republic, Slovakia, Slovenia, Estonia, Bulgaria, Romania, and Croatia. (Same-sex marriage cannot be celebrated in Northern Ireland, but United Kingdom immigration regulations treat same-sex couples as having immigration rights across the whole United Kingdom.)
But where one spouse is not an EU citizen, the Coman judgment may be crucial for their right of residence in one of these 14 states. The ruling has immediate effect and is easy to put into practice. Many use the neutral term “spouse” in their national law implementing EU free movement law, which must now be interpreted by officials to include same-sex spouses married in other EU states. Where states have chosen to implement the law with an exclusion for same-sex couples, that must now be repealed. But regardless of repeal, the EU law right of residence of a spouse is directly effective and can be relied upon by individuals, meaning officials and courts are legally bound to respect it.
The case only concerned couples married in an EU member state. Marriages contracted in other non-EU states, like Australia, Mexico, Canada, South Africa, and the United States, do not count under the ruling. This could create serious difficulties, since these couples cannot marry each other again in an EU state. A same-sex couple of an EU citizen and non-EU citizen, who married in the United States and then lived in France, have good arguments that their EU right to free movement would require a non-same-sex marriage state to admit them as spouses. Same-sex couples married in non-EU Norway and Iceland could also argue for the same rights as Hamilton, since citizens of those states have rights of free movement under EU law.
Notably, this week’s judgment does not address EU law rights that come along with the right of residence. The Citizens Directive forbids member states from treating EU citizens and their spouses differently from their own citizens and spouses for entitlements within the scope of EU law, including all social advantages like education, health, and public services. Implementing this may be more challenging administratively than issuing residence permits.
The Coman and Hamilton judgment is solidly based in the language of EU law and EU policies of respecting the national traditions of each member state. To hold that Romania could refuse to recognize a Belgian marriage would have undermined the democratic choices of half of Europe. The other half may continue to refuse to allow same-sex couples to marry there, but they cannot stop EU citizens, including their own, from enjoying legal rights guaranteed by EU law.
Until December 2019, Simon Cox was a migration lawyer for the Open Society Justice Initiative.