On June 5th, 2018, the Court of Justice of the European Union passed a ruling which gave same sex spouses freedom of movement anywhere within the EU, even if the country itself has not yet made same sex marriage legal.
This is an unprecedented ruling as 6 out of the 28 EU countries have yet to legalize same sex marriage. Gay couples are not recognized in these countries and do not fit the definition of marriage.
However, one couple made it possible for this ruling to pass. Romanian citizen Adrian Coman and his husband, American Clai Hamilton met in the U.S in 2002. After 4 years, they got officially married in Brussels. They continued living there as Hamilton’s job was with the European Parliament.
Recently, the couple decided to move to Coman’s native country Romania. Hamilton tried to register his passport and become a derived family member of Coman so that they could both live in the country. This was met with a rejection from the Romanian authorities as the country does not recognize same sex marriage and thus could not give a family member status to Hamilton.
The authorities stated that Hamilton could not stay in the country for more than 90 days. As a U.S citizen, he would not need a Schengen Visa, but nevertheless, the timeframe was too short.
The couple disagreed and went on to sue Romania on the basis that it was violating the right of an EU citizen to live anywhere in the 28 counties that make up the bloc. The case went on to the European Court of Justice (ECJ), which ruled in favor of the Coman and Hamilton.
In the press release issued, the ECJ stated:
“Although the Member States have the freedom whether or not to authorise marriage between persons of the same sex, they may not obstruct the freedom of residence of an EU citizen by refusing to grant his same-sex spouse, a national of a country that is not an EU Member State, a derived right of residence in their territory”
The EU court stated that a fundamental right of an EU citizen is the right to live in any country within the bloc. If a country does not allow their spouse to live with them in their country of choice, this will discourage the EU national and limit their freedom of movement. Taking into account that the issue was on same sex marriage, this prohibition would discourage EU nationals to live and work in the EU countries which do not support it. Thus, the court concluded that this violates the rights of the EU national.
Additionally, the right to freedom of movement includes the spouse of the EU national. The court argued that the word “spouse” is gender neutral and is defined as “a person joined to another person by the bonds of marriage”, thus it includes same sex couples too.
Finally, the court noted that a relationship of a homosexual couple falls within the notion of “private life” and is the same as the relationship of a heterosexual couple, where the court cannot interfere.
The ECJ made a point that it does not seek to influence the particular legislation of any EU country, and that the courts of the countries themselves have the authority to decide whether gay marriage is legal or not.
Nevertheless, the issue in this case was in regards to freedom of movement, and it now allows gay couples to move anywhere within the EU despite the fact that some of these countries do not recognize their marriage.
The ruling from the ECJ was applauded by LGBTQ+ advocacy groups. However, right-wing, populist groups from more conservative countries such as Poland, Hungary, and Latvia condemned the decision on the basis that Brussels cannot interfere with their legislation and change the definition of marriage. They argued that it is up to the countries themselves to decide what marriage means and not Brussels’ job.