Court Adviser Paves Residency Path for Gay Couple in Romania

(CN) - Romania’s refusal to recognize gay marriage does not mean it can deny residency rights to a citizen’s American husband, an adviser to the EU’s top court said Thursday.

Relu Adrian Coman and Robert Clabourn Hamilton married in Brussels in 2010 but they sought Romanian working papers two years later when Corman’s job at European Parliament ended.

In 2013, after Romanian immigration officials denied their application, they filed suit in Bucharest. The case was punted to Luxembourg in 2016 when Romania’s constitutional court sought clarification on the underlying human-rights issues.

Advising the European Court of Justice on the case, Advocate General Melchior Wathelet said Thursday balanced Romania’s interest in protecting “the traditional family” against its obligation not to discriminate on grounds of sexual orientation.

“The obligation to facilitate the entry and residence of the national of a third state of the same sex as the citizen of the European Union to whom he or she is married is greater, and the discretion narrower, when the member state does not allow marriage between persons of the same sex and does not afford homosexual couples the possibility of entering into a registered partnership,” Wathelet wrote.

Quoting the European Convention on Human Rights and the EU’s Charter on Fundamental Rights, Wathelet called it incumbent upon member states to offer gay couples, “like heterosexuals, the opportunity of having their union recognized in law and protected by the courts.”

“Granting the spouse of a union citizen a right of residence constitutes recognition and the minimum guarantee that can be given them,” the opinion concludes.

Wathelet noted that the Netherlands and Belgium were the only two EU member states that made marriage available to same-sex couples in 2004 when the EU citizenship directive at issue was adopted. The law guarantees the freedom of movement to spouses and other family members of EU citizens.

Since then, “11 more member states have since amended their legislation to that effect,” Wathelet added.

He noted that “same-sex marriage will be possible in Austria too,” by this time next year.

“That legal recognition of same-sex marriage does no more than reflect a general development in society with regard to the question,” Wathelet wrote. “Statistical investigations confirm it; the authorization of marriage between persons of the same sex in a referendum in Ireland also serves as an illustration. While different perspectives on the matter still remain, including within the union, the development nonetheless forms part of a general movement. In fact, this kind of marriage is now recognized in all continents. It is not something associated with a specific culture or history; on the contrary, it corresponds to a universal recognition of the diversity of families.”

Earlier in the opinion, Wathelet focus on one of the less traditional aspects of Coman and Hamilton’s relationship. The couple met in New York in 2002 and lived together there for four years, but Hamilton remained in New York initially when Coman moved to Belgium for work.

Wathelet said the pair should still be considered a family unit.

“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. “In a globalized world, it is not unusual for a couple one of whom works abroad not to share the same accommodation for longer or shorter periods owing to the distance between the two countries, the accessibility of means of transport, the employment of the other spouse or the children’s education. The fact that the couple do not live together cannot in itself have any effect on the existence of a proven stable relationship — which is the case — and, consequently, on the existence of a family life.”

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