Gay Spouses Have EU Residence Rights, Top Court Rules

In this Friday, July 22, 2016 photo, Clay Hamilton, left, and Adrian Coman, an American-Romanian gay couple who were married in Belgium and seek legal recognition of their status in Romania, smile during an interview with the Associated Press in Bucharest, Romania. On Tuesday, June 5, 2018 the European Court of Justice in Luxembourg ruled that the gay couple is entitled to the same residency rights as other married couples in the European Union. (AP Photo/Vadim Ghirda, File)

(CN) – In a victory for married same-sex couples in Europe, the European Court of Justice ruled Tuesday that member states where gay marriage is not recognized may not deny residency to spouses of EU citizens.

While the Luxembourg-based high court pointed out member states are free to authorize same-sex marriage or not, they cannot split up same-sex couples who have been legally married elsewhere and deprive them of a life together by denying residency to the noncitizen spouse.

The court’s preliminary ruling stems from a dispute in Romania, where authorities refused to grant a residency permit to the American spouse of a Romanian citizen. The men were married in Brussels, where same-sex marriage is legal, in 2010.

Romanian law not only prohibits gay marriage, it also refuses to recognize legal gay marriages entered into elsewhere. But the law does state that EU laws on freedom of movement to Romania are applicable – for EU citizens and citizens of nations belonging to the European Economic Area.

Since one half of the couple is American – not a citizen of Europe – Romanian authorities denied the residency permit. The couple sued, claiming discrimination, and the court hearing their case asked the EU high court whether Romania’s law on freedom of movement unconstitutionally discriminated against gay couples.

The EU court noted that for the purposes of the right to free movement, spouses are family members who – in the interest of keeping families together – must be granted residency. Furthermore, the court noted the word “spouse” in the relevant EU law is gender-neutral and applies to all couples, regardless of their gender makeup.

“To allow member states the freedom to grant or refuse entry into and residence in their territory by a third-country national whose marriage to a union citizen was concluded in a member state in accordance with the law of that state, according to whether or not national law allows marriage by persons of the same sex, would have the effect that the freedom of movement of union citizens who have already made use of that freedom would vary from one member state to another, depending on whether such provisions of national law exist,” the court wrote. “Such a situation would be at odds with the court’s case-law, to the effect that, in the light of its context and objectives, the provisions of Directive 2004/38, applicable by analogy to the present case, may not be interpreted restrictively and, at all events, must not be deprived of their effectiveness.”

While Romania has no obligation to recognize the couple’s marriage, denying them residency runs afoul of the EU citizen’s constitutional right to move freely about the European Union, the court said in its preliminary ruling, which is binding on the Romanian court hearing the couple’s case.

As of March 2018, 15 European countries recognize and perform same-sex marriages. Beginning in 2019, Austria joins the list.

Another 11 European nations recognize civil unions between gay partners in some form.

Marriage is constitutionally defined as a union solely between a man and a woman in 14 mostly Eastern European countries.


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