By Jenilyn Brhel
Impunity Watch Reporter, Europe

BRUSSELS, Belgium – In a major step forward for the European Union, an advocate general of the European court of justice said that residency rights should be accorded to all same-sex couples regardless of whether the member country legally recognizes same-sex marriages.

Clay Hamilton, left, and Adrian Coman fought for Hamilton’s residency in Romania. Photo Courtesy of Vadim Ghirda.

In an opinion published on January 11th, Melchior Wathelet, a European court of justice advocate general in Luxembourg, issued an opinion stating that gay spouses had residency rights even in member countries where gay marriage is not authorized.

“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 national of a non-EU country, a right of permanent residence in their territory,” Wathelet said.

The European court of justice is the highest court in Europe. The court of justice still needs to rule on the case. Opinions given by advocate generals are non-binding, but they are usually followed by the court in full.

The opinion arose out of a case in Romania surrounding Arian Coman, a Romanian national, and his husband, Claibourn Robert Hamilton. The couple married in Brussels in 2010. A few years later they wanted to move to Romania from their residence in New York, but Hamilton was denied the right to residence there because he could not be classified as the spouse of Coman in the country. Romania does not recognize same-sex marriages.

In his opinion, Wathelet stated that the European Union was neutral on the gender of a spouse. Current law permits non-European Union spouses to move to the member nation of his or her spouse.

Coman and Hamilton are thrilled with the verdict. “Romanian citizens can’t be divided into good and gay. We can’t be treated as inferior citizens, lacking equal rights, based on prejudices that some have about homosexuality,” Coman said in a written statement.

Currently, 22 of the 28 member nations of the European Union either legally recognize same-sex marriages or have some protections in place.

“In view of the general evolution of the societies of the member states of the EU in the last decade in the area of authorization of same-sex marriage” recognition of marriage as “a union between two persons of the opposite sex” is no longer an appropriate categorization.

Legislation which would legally recognize same-sex marriages remains to be enacted in Bulgaria, Latvia, Lithuania, Poland, Romania and Slovakia.

For more information, please see:

BBC News – EU top Court Told Same-Sex Spouses Have Residence Rights – 11 January 2018

The Guardian – Gay Spouses Have Rights in all EU Countries, Says European Court Official – 11 January 2018

The New York Times – Same-Sex Spouses Should Have E.U. Residency Rights, Court is Told – 11 January 2018

Reuters – EU Court Adviser Backs EU-Wide Recognition of Same-Sex Spouses – 11 January 2018

U.S. News and World Report – Gay Couples Merit EU Residency Rights, Court Adviser Says – 11 January 2018

Author: Jenilyn Brhel