Same-sex marriage in Europe

NICK EICHER, HOST: Last week, the U.S. Supreme Court decided the Masterpiece Cakeshop case. It involved a same-sex couple who sued a Colorado baker who declined to make them a custom wedding cake. In a 7-to-2 ruling, the Supreme Court sided with the baker.

An important same-sex marriage case in Europe was also playing out last week—although it received much less attention stateside. WORLD Radio’s Sarah Schweinsberg has our report.

SARAH SCHWEINSBERG, REPORTER: In a historic ruling, the European Union Court of Justice—or ECJ—declared that all European Union countries must recognize same-sex marriage…. At least in relation to immigration cases.

Here’s the background. One of the freedoms enjoyed by EU citizens is free movement. That’s the right to live and work in any of the EU’s 28 nations. This also includes the rights of entry and residence for EU citizens’ spouses and children.

Right now six European Union countries don’t recognize any type of same-sex union, and nine countries only recognize same-sex civil unions.  

Adina Portaru is a legal counselor with Alliance Defending Freedom International in Brussels, Belgium. She is also from Romania—where this case originated.

PORTARU: It is a landmark case because it is the first time that the Court of Justice of the European Union rules on the definition of spouses, especially in the context of free movement. The case reached the Court of Justice of the European Union because the Romanian Constitutional Court considered that the term spouses in EU free movement legislation was unclear.

The case involved Claibourn Hamilton, a U.S. citizen, who married Adrian Coman, a Romanian citizen. The couple wed in Belgium—where same-sex marriage is legal. After living in Belgium for years, Coman wanted to return to Romania with Hamilton as his husband.

Same-sex marriage is not legal in Romania, so when Coman met with Romanian officials, they denied Hamilton’s right to live in the country as Coman’s spouse. Here’s Adrian Coman.

COMAN: After I gave them the documents, they closed the window, talked among themselves for a few minutes, and came back saying your marriage is not recognized in the Romanian law.

Last week’s ruling changed that. The ECJ court said Romania must grant American Claibourn Hamilton residency, because under EU law spouse does include same-sex partners even in member nations like Romania that don’t recognize it. The court said all EU members must recognize marriages granted in other member states.

While the court limited its definition of spouse to only apply under free movement law, ADF’s Adina Portaru says the ruling will pigeonhole all European Union nations.

PORTARU: Once a member state accepts that a same-sex married couple are spouses regarding family reunification and are therefore entitled to a right of residence, it then becomes contradictory to say that the status is not applicable for other legal purposes–let’s say taxation, inheritance, pensions, hospital visitation rights.

Other legal scholars agree with Portaru’s assessment. Alina Tryfonidou is a professor at the University of Reading in Great Britain.

TRYFONIDOU: Most probably the member states would recognize that they would have to recognize married same-sex couples as married for other purposes as well, although that’s not required by EU law.

ADF’s Alina Portaru says the case highlights growing tensions between Western Europe’s liberal nations and socially conservative Eastern Europe.

PORTARU: By advancing a uniform understanding of marriage, the court of justice actually might cause, rather than avoid, significant legal challenges to this. It will not bring more harmonization but actually more challenges and more legal chaos as member states will not be clear as a result of this.

In the coming months, Romania will hold a referendum on the definition of marriage. The vote will decide whether the country will change its constitution to specify marriage must be a union between a man and a woman. The referendum is the result of a 2016 petition that gathered 3 million signatures.

But Alina Tryfonidou of the University of Reading says the seven constitutional amendments EU members have already made defining marriage as between a man and woman offers only limited autonomy.

TRYFONIDOU: There is a principal in EU law, the so called supremacy principle, which says that whenever there’s a conflict between EU law and national law, EU law prevails. So even if a member state like Croatia has a constitutional ban on same-sex marriage, EU law requires that member state to sidestep its constitution and give recognition to same-sex marriages if this is what is required by EU law.

Reporting for WORLD Radio, I’m Sarah Schweinsberg.

(Photo/Vadim Ghirda, Associated Press) Claibourn Hamilton (left) and Adrian Coman

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