Gay couple in Romania should get equal treatment — European Union adviser

Clai Hamilton and Adrian Coman

Gay couple's joy after ECJ advisor backs bid for Romania marriage recognition

The case involved Romanian Adrian Coman and American Clai Hamilton, who married 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. The case was later referred to the court.

More than a dozen European Union countries have not legalised marriage equality, including Italy, Greece and Slovenia, but Wathelet was at pains to emphasise that this case was not about same-sex marriage.

The rights of same-sex spouses must be recognised by every member of the EU, even if a country's government has not authorised gay marriage, the European court of justice has been advised. Panels of judges from member states sit to interpret whether European Union law is being fairly applied and can issue binding rulings over national courts. In December 2012, Mr Coman and his spouse requested the Romanian authorities to issue them with the necessary documents in order to enable Mr Coman to work and reside permanently in Romania with his spouse.

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But because Romania does not recognise same-sex marriage, Hamilton's bid for a residence permit to live there was refused. While member states are free to provide for marriage between persons of the same sex in their domestic legal system or not, they must fulfil their obligations under the freedom of movement of European Union citizens.

The couple's case is giving the European Court of Justice its first opportunity to consider if an EU directive on the rights of citizens and their family members to "move and reside freely" within the bloc applies when married spouses are two men, according to Wathelet. It will also ensure the term "spouse" is always seen as gender neutral by law.

Romania prohibits marriage between people of the same sex. Moreover, the ECtHR also considered that, in the area of family reunification, the objective of protecting the traditional family can not justify discrimination on grounds of sexual orientation.

A senior adviser to the European Union's top court has backed a Romanian gay man's right to have his United States husband live with him in Romania.

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Wathelet added that "the concept of "spouse" within the meaning of the directive also includes spouses of the same sex".

The ECJ's 28 judges are not bound by the opinions of the advocate generals, but follow them in the majority of cases.

"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.

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