Tuesday

23rd Oct 2018

Case 673/16: An EU (same-sex) love story

  • "I'd like to move back to where I was born ... with the man I love," Coman (l) said (Photo: acceptromania.ro)

When Adrian Coman and Clai Hamilton went on their first date in New York 16 years ago, little did they know that their story would end in a happy day for gay rights in Europe.

But from Tuesday (5 June), the six EU countries that do not recognise same-sex spouses' immigration rights will be forced to do so in line with an EU Court of Justice ruling on C‑673/16, in what became the Coman-Hamilton case.

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  • EU states cannot deny residency based on a spouse's gender, the court said (Photo: Gwenael Piaser)

"In the directive on the exercise of freedom of movement, the term 'spouse', which refers to a person joined to another person by the bonds of marriage, is gender-neutral and may therefore cover the same-sex spouse of an EU citizen," the EU's top tribunal said in Luxembourg.

"We can now look in the eyes of any public official … across the EU with certainty that our relationship is equally valuable and equally relevant," Coman, a Romanian national, said.

"Human dignity wins today," he said.

The couple currently live in the US and it could take two years or more for Romania to fall in line with the EU verdict, pending appeals, but Coman hoped that Tuesday's decision had changed his future.

"When I grow older, I'd like to move back to where I was born and where I grew up. I'd like to be able to do that with my family, with the man I love," he said.

The EU verdict goes against Romania's civil codex, whose Article 277 states: "Same-sex marriage contracted abroad, whether between Romanian citizens or by foreign citizens, is not recognised in Romania".

It also goes against similar laws in Bulgaria, Latvia, Lithuania, Poland, and Slovakia.

If they treat it with contempt, it could lead to European Commission infringement proceedings and fines.

It could also help wronged gay couples to seek damages in national courts.

The landmark ruling comes at a time when some right-wing governments in central Europe were already waging war with the EU on asylum laws and on liberal values more broadly speaking.

Forcing them to take in Muslim refugees was an affront to national sovereignty and a threat to national identity, leaders in Hungary, Poland, and Slovakia have said.

Hungary was not affected by Tuesday's ruling, but Hungarian, Polish, and Slovak jurists had argued against Dutch ones in court hearings on C‑673/16.

Hungary had replaced "a shipwrecked liberal democracy with a 21st-century Christian democracy" based on "the traditional family model of one man and one woman", its prime minister, Viktor Orban, a far-right darling, said in May.

The fact that Coman once worked for the European Parliament in Brussels could help enemies to attack Tuesday's ruling as an 'EU diktat'.

The notion, no matter how misleading, that the EU had forced member states to recognise gay marriage, could also provide fodder for British and US tabloids and for Russia's anti-EU propaganda machine.

The ruling covered residency rights only and did "not require [any given] member state to provide, in its national law, for the institution of homosexual marriage", the EU tribunal said to try to make things clear.

Happily ever after?

That date in New York, in Central Park, on 22 June 2002, began a love affair that led Coman to propose to Hamilton, a US national, eight years later.

"While having a long-distance relationship, I understood he's my life partner, for better or for worse," Coman said.

"He was very emotional and said 'Yes' immediately. Although it happened on Skype, it was still very romantic," Coman said.

They married in Belgium in 2010, but when they tried to move to Romania in 2013, it declined to grant Hamilton a residency permit, prompting their battle in national and EU courts.

If Coman had married a foreign woman, Romania would have given him a permit out of hand.

The wider ramifications saw NGOs and one law firm rally round the couple.

The Brussels office of US legal firm White & Case lent them the services of a partner and two more junior staff on a pro bono basis.

Iustina Ionescu, a Romanian human rights lawyer, Robert Wintemute, a British legal scholar, and Accept, a Romanian gay-rights NGO, also got on board.

The judges' decision was "a great victory for same-sex couples across Europe," Accept's Romanita Iordache said on Tuesday.

"We want to see the Romanian authorities move swiftly to make this judgment a reality," Evelyne Paradis, from Ilga-Europe, a Brussels-based NGO, said.

The gay rights movement scored a previous win in Malta last year, when the once conservative, Roman Catholic island recognised same-sex marriage at home, becoming the 13th EU state to do so.

But even if things were getting better in northern and in parts of southern Europe, the further east one travelled, the harder the life became for lesbian, gay, bisexual, trans, and intersex (LGBTI) people, Ilga-Europe said in a recent report.

"Trends like populism and nationalism aren't just political buzzwords - they can have a lasting impact on the lives of LGBTI people," the NGO said, referring to the rise of Orban-type populism.

The clock could even be turned back, Ilga-Europe warned, after Italians voted in the League, a far-right party some of whose MPs espoused homophobic views, in an election in March.

Better late than never

The civil rights movement, more widely speaking, also scored a win in Ireland when it legalised abortion in a referendum last month.

Ireland legalised gay marriage last year, but for some the changes merely highlighted to what extent some EU states were latecomers in the trend.

Sex between men was illegal in Ireland until 1993 and in Romania until 1996.

Most EU countries, such as Germany, repealed anti-gay laws in the 1960s and 1970s, but Denmark did it in 1933, while France did it in 1791.

Articles 10 and 19 of the EU treaty and Article 21 of the European Charter on Fundamental Rights now forbid discrimination on grounds of "sexual orientation."

The EU's enlargement criteria, adopted in 1993, also prohibit discrimination against "minorities" in places like Georgia, Turkey, and Ukraine if they want to ever join.

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