European Court of Justice: EU Countries Should Recognize Same-Sex Spouses, Even If Marriage Equality Isn’t Legal

A Romanian court refused to grant residency to a gay American married to a Romanian.

The advocate general for the European Court of Justice (ECJ) has stated that same-sex spouses have residency rights in the European Union, even in countries that don’t recognize marriage equality.

EU law permits a non-EU spouse of an EU citizen to join them in the member state. This week, ECJ advocate general Melchior Wathelet said that should include same-sex spouses who wed in a country that has equal marriage on the books.

“Although member states are free to authorize marriage between persons of the same sex or not, they may not impede the freedom of residence of an EU citizen by refusing to grant his or her spouse of the same sex… a right of permanent residence in their territory.”

The case involved Romanian Adrian Coman and American Clai Hamilton, who married in Brussels in 2010. But the couple now resides in Romania, which has yet to legalize same-sex marriage.

But the Romanian government has so far refused to grant Hamilton a residency permit. The couple challenged the decision in Romanian court, claiming it was discrimination based on sexual orientation. Romania’s constitutional court then referred the case to the ECJ

Wathelet maintains that EU law defines “spouse” as a legal married partner, including one of the same sex, and makes no reference to member nations’ definition of the word. His advice is not binding, but the BBC reports ECJ judges generally followed the advocate’s lead.

Once the ECJ has made its decision, the case will return to Romanian court.

Same-sex marriage is recognized in at least a dozen EU countries—including Germany and Malta, which passed legislation last year. Bulgaria, Latvia, Lithuania, Poland, Romania and Slovakia still grant no legal recognition to same-sex couples.

Dan Avery is a writer-editor who focuses on culture, breaking news and LGBT rights. His work has appeared in Newsweek, The New York Times, Time Out New York, The Advocate and elsewhere.