A disturbing decision by the EU’s Court of Justice redefines the term ‘spouses’

EDW
June 6, 2018

  Roxana Stanciu

In a June 5th decision in Coman and Others v. Romania, the Court of Justice of the European Union (CJEU) issued a judgment that all EU member states need to recognize the ‘right of residence’ of same-sex couples (those with at least one EU citizen) whose marriage was contracted abroad.  The decision applies even to those countries that have passed national or constitutional protections on marriage as the union between a man and a woman. Though seen as merely a ‘free movement’ case, the Court’s troubling decision effectively redefines the term ‘spouses’ across the EU.

 

Background

The case involves the government of Romania which, in line with national legislation, had refused to recognize a ‘marriage certificate’ issued by Belgium for Adrian Coman, a Romanian citizen, and Clai Hamilton, an American citizen. In a lawsuit filed against the Romanian government, the couple had argued that their ‘right to freedom of movement’ within the EU had not been respected. In 2016, the Romanian Constitutional Court referred the case to the CJEU.

 

A problematic decision

“The decision of the Court of Justice of the EU in the case of Coman and Others is highly problematic,” says Adina Portaru, Legal Counsel for ADF International. She elaborates:

Many European countries recognize and protect marriage as a union between one man and one woman. It is their right to do so. The core notions of family law – ‘spouses’, ‘family member’, and ‘marriage’ – fall within the competence of EU Member States. This is well supported by the language of core EU law on the matter, including today’s ruling of the Court of Justice. By putting forward a definition of ‘spouses’ as including same-sex partners, the Court eradicates national competence on the issue.

She also adds: 

The free movement of persons cannot be used as a backdoor to redefine well-understood terms like ‘marriage’ and ‘family’. Forcing a Member State to amend its national law to legally recognize same-sex relationships means deliberately ignoring national democratic processes. In Romania, for example, three million people signed an initiative to define marriage as between one man and one woman in the constitution. By redefining the term ‘spouse’, the Court of Justice signals its disrespect for national sovereignty and diversity in the EU and it risks creating legal chaos as a result.

 

Implications for Romania’s marriage referendum

The CJEU’s decision comes at a crucial moment in Romania’s history. Since 2016, there has been an ongoing Citizens’ Initiative in the country, through which three million people have been seeking a constitutional referendum to define marriage as a union between a man and a woman.  Despite broad support for this initiative, powerful interests have delayed the organisation of the referendum in an extremely undemocratic manner, as pointed out in some of our previous articles.

Moreover, the Romanian Civil Code clearly states that Romania shall not recognize same-sex marriages contracted abroad and that marriage between persons of the same sex shall be prohibited. The same provision applies to civil partnerships. A successful result to the referendum would align the Romanian Constitution with the country’s existing Civil Code.

But according to a memorandum published by ADF International, the CJEU’s recent decision implies that Romania’s Civil Code is not in accord with EU law anymore. The implications of the Court’s decision underscore the importance of the Romanian marriage referendum. It needs to take place. Since the term ‘spouses’ has been essentially redefined by the CJEU as being gender-neutral, its meaning in the Romanian Constitution needs to be clarified. The will of 3 million people who want to have a referendum on marriage – and who want to have the term ‘spouses’ defined as ‘one man and one woman’ – must be respected.

 

A ‘slippery slope’ at the EU level?

The decision of the CJEU will not only affect Romania.  It could also lead to a ‘slippery slope’, with impacts across the EU.

In a recent article published by The New York Times, Robert Wintemute, from King’s College London, states that “the principle that spouses include same-sex partners will be immediately binding for all courts in the bloc’s current members, and for those in any countries that join later.” He notes that this could “put pressure on the six member states [Bulgaria, Latvia. Lithuania, Poland, Romania, and Slovakia: the enumeration is ours] without legal recognition of same-sex unions to introduce some form of legislation”.

ADF International has warned,

Creating an obligation to recognize cross border same-sex marriage would create a new legal institution of ‘same-sex marriage contracted abroad’ in Member States without any proper legal basis – either domestically, or in EU law.

 

It is a challenging time. But we will keep you informed on how the CJEU’s decision will impact the EU member states in terms of marriage legislation and policy making.