Gay spouses have rights in all EU countries, says European court official


The opinion was given on the case of a Romanian national, Adrian Coman, who wishes to build a life in Romania with his American husband, Claibourn Robert Hamilton, who he lived with in the U.S. before marrying in Brussels in 2010.

In what has been hailed as a major step forward for equal rights, Melchior Wathelet, a Belgian advocate general in the Luxembourg court, said gay spouses had standing in countries even where governments were implacably opposed to same-sex marriage.

It is one of six European Union countries with no legal recognition of same-sex relationships, along with Bulgaria, Latvia, Lithuania, Poland, and Slovakia.

"While Member States are free to provide for marriage between persons of the same sex in their domestic legal system or not, they must fulfill their obligations under the freedom of movement of European Union citizens".

EU law permits a in the member state where the European national resides.

Two years later, the couple wanted to move to Romania, and requested the necessary documents.

Coman and Hamilton have been fighting for years to have their legal status as spouses officially recognised in Romania, where there is strong anti-gay sentiment.

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One of the EU's most senior legal advisers has said that same-sex partners of European Union citizens enjoy the same free movement rights as partners of a different gender. But the couple now resides in Romania, which has yet to legalize same-sex marriage. Previously, the term "spouse" had been undefined.

The EU's freedom of movement principle grants rights to an EU citizen's spouse, without specifying how spouse is defined.

The ECJ has had a relatively benign history with the United Kingdom - unlike the more contentious European court of human rights in Strasbourg - but nonetheless became a symbol of compromised sovereignty during the Brexit referendum. The couple challenged the decision in Romania's constitutional court, saying it was discriminatory on the grounds of sexual orientation.

In that context, the Advocate General considers that, in view of the general evolution of the societies of the member states of the EU in the last decade in the area of authorisation of same-sex marriage, the case-law of the Court whereby "according to the definition generally accepted by the Member States, the term marriage means a union between two persons of the opposite sex" can no longer be followed. Accordingly, such a person may also reside on a permanent basis in the territory of the member state in which his or her spouse is established as an European Union citizen after exercising his or her freedom of movement.

The official opinion of the advocate general - the highest officers of the court who advise judges on how to rule on complex cases - will now be considered by a panel of ECJ judges.

"The fact that Mr. Hamilton did not live continuously with Mr. Coman in [Brussels] does not seem to me to be capable of rendering their relationship ineffective", he wrote.