July 24, 2018
By Manon Beury, research assistant in Comparative Sexual Orientation Law, Leiden University
Following the eagerly-awaited judgment of the Court of Justice of the European Union (CJEU) in Coman and Others v. Romania, the Romanian Constitutional Court decided on 18 July 2018 that same-sex married couples have the right to reside in the country if one of the spouses is a Romanian citizen. The CJEU ruled on 5 June 2018 that the term “spouse”, for the purpose of granting a right of residence to non-EU citizens, includes same-sex spouses. The decision was hailed as a great victory for same sex couples. Yet, overjoyed celebrations may be rushed. If the Luxembourg Court did raise the bar on LGBT rights in Coman, the step forward regarding the recognition of same-sex marriage is a rather small one. At a point in time where certain Member States are introducing a constitutional ban on and others are legalising such marriages, the Court in Coman served as a forum for political battles that crystallise a clear divide within the EU.
Relu Adrian Coman, a dual Romanian-American citizen, and Robert Clarbourn Hamilton married in Belgium in 2010. Two years later, Mr Hamilton, in his capacity as member of Mr Coman’s family, requested a permanent right to residence in Romania. However, his request was rejected by the Romanian authorities on the basis that the Civil Code prohibits same-sex marriage and does not recognise such unions even if contracted abroad (Article 277(2)). Supported by the Bucharest-based NGO Asociaţia ACCEPT, the spouses challenged this decision, claiming that it is a case of discrimination on the ground of sexual orientation and that the latter provision of the Civil Code is unconstitutional.
A step forward for same-sex spouses in Europe
The Romanian Constitutional Court asked the CJEU for a preliminary ruling on whether the term “spouse” in Article 2(2)(a) of the Citizens’ Directive (2004/38/EC) includes a non-EU national that is legally married to an EU citizen in another Member State than the EU host State?
The ruling held that the term “spouse” is indeed gender neutral and may therefore include spouses of the same sex. Therefore, Romania cannot rely on its national law as justification to refuse the recognition of a marriage between two persons of the same sex legally concluded in another Member State. A refusal of said right would have resulted in different applications of the EU citizen’s freedom of movement among its Member States, depending on whether or not national law allows same-sex marriage.
A national measure obstructing the freedom of movement may be justified only in the case that it is consistent with the Charter of Fundamental Rights. Although the CJEU did not further explore this point, it referred to the right to respect for private and family life (Article 52(3) of the Charter) and to the case-law of the ECtHR in Vallianatos and Others v. Greece and Orlandi and Others v. Italy. In the latter, the Strasbourg Court interpreted Article 8 ECHR as requiring “some form” of recognition of same-sex relationships officialised in another state. In a sense, the CJEU goes further in Coman, obliging Romania to recognise the union of Mr Coman and Mr Hamilton as a marriage.
The narrow scope of the judgment
So far, the celebrations seem to be justified but the true reach of Coman in the realm of LGBT rights cannot yet be assessed. Indeed, an attentive reading of the judgment reveals its narrow scope. Firstly, the Court once again made it clear that EU Member States are free to bar same-sex couples from marrying on their territory. Secondly, it should be kept in mind that the judgment applies to same-sex spouses but not to registered partners. Indeed, Article 2(2)(b) of the Citizens’ Directive explicitly provides that those are only entitled to a derived right of residency if “the host Member State treats registered partnerships as equivalent to marriage.” Finally, the judgement concerns only couples married in an EU Member State and is confined to question of free movement of persons without addressing discrimination on the ground of sexual orientation. The Grand Chamber insisted on the fact that the decision applies to “the sole purpose of granting a derived right of residence.” It does not address the issue of other rights that are based on residency.
Third party interventions and the politicisation of the case
Nevertheless, against the backdrop of a number of EU Member States recently introducing constitutional bans on same-sex marriage, the Coman decision is an important counterweight. Indeed, Romania may now follow the examples of Bulgaria, Croatia, Hungary, Latvia, Lithuania, Poland and Slovakia. In 2016, with the support of the Orthodox Church, a petition signed by around 3 million Romanians called for a constitutional referendum on the definition of marriage as the union between a man and a woman. Romanian lawyer Constantine Cojocariu observed that this petition aims at anticipating “any moves to legalize same-sex unions under pressure from European institutions” as it happened in Greece or Cyprus. In this context, Coman became emblematic for both sides of the polarised Romanian society but also the divide within the entire EU. Either hoping or fearing that European courts could ultimately impose same-sex marriage across Europe, Member States and NGOs systematically advocate in these fora to underline their own positions on LGBT rights.
This reflects the situation in Oliari and Orlandi and many other cases related to same-sex unions, where civil rights NGOs confronted their differing views to the ECtHR. In Coman, the case already took a European dimension at the stage of the Romanian Constitutional Court. Several European and international organisations submitted amicus curiae briefs in support of one party or the other. What drives them to intervene in national proceedings? ILGA-Europe, a non-governmental umbrella organisation for LGBTI rights, explains that it saw the “immensely positive impact the case could have” not only for “couples in Romania, but all over the EU.” Interveners pressed the Constitutional Court to make a reference for a preliminary ruling to the CJEU. It is plausible to believe that they indeed weighted in the decision of the Romanian judges to make such referral for the very first time since the country joined the EU.
The rules of third party interventions at the CJEU are stricter than at the ECtHR. Yet, such stricter rules did not prevent the Court to become the theatre of an advocacy battle. Four national governments, the Romanian National Council for Combating Discrimination (CNCD) and the European Commission intervened in Coman. The Netherlands and the European Commission supported the applicants with observations pointing at the evolution of legal recognition and protection of same-sex couples in the EU. Interestingly, although it is a Romanian national agency, the CNCD intervened as third party and presented similar arguments against the position of the Romanian government.
Latvia, Hungary and Poland submitted observations during the oral pleading, raising their intention to maintain a constitutionally protected conception of the institution of marriage as a union between a man and a woman. The Latvian government insisted that the refusal to recognize same-sex marriage was justified on grounds of public policy and national identity. The Luxembourg judges dismissed these arguments. Recalling that Member States are free to decide whether or not to allow same-sex marriage, the Court argued that the obligation to recognise such unions, for the sole purpose of granting a derived right to residence, does not undermine the institution of marriage. Following the ruling of Coman, not only Romania but all EU Member States will now be obliged to recognise same-sex marriage celebrated in another EU Member State for this very specific purpose.
The difficulty of assessing their weight in court makes third party interventions appear as almost a decorative, even futile, act. And arguably the courtroom is not the ideal forum to carry out general ideological discussions. Nonetheless, such a vivid interest in certain procedures echoes an important divide between different interest groups or, in this case, Member States.