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ECJ: Same-sex spouses of EU citizens have right to residency

Rebecca Staudenmaier
June 5, 2018

The European Court of Justice ruled that member states cannot refuse residency to non-EU spouses of EU citizens. However, the court's decision still allows states to decide whether to legalize gay marriage.

A person waves a rainbow flag at a Pride Week event in Berlin, Germany
Image: picture alliance / NurPhoto

The European Court of Justice (ECJ) ruled in favor of a Romanian man and his US-American husband on Tuesday, saying EU states cannot refuse residence permits for same-sex, non-EU spouses.

The court's decision is likely to ruffle the feathers of several EU member states, particularly in eastern Europe, where same-sex marriage is not allowed.

How did the court rule?

  • By not granting residency to an EU citizen's same-sex spouse, member states interfere with that citizen's right to move freely in the bloc.
  • The term "spouse" in the bloc's freedom of movement directive is gender neutral, meaning it applies to same-sex spouses of EU citizens, as well.
  • EU member states are still free to decide whether or not to legalize gay marriage.

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Details of the case: The case concerned Romanian national Relu Adrian Coman and his US-American husband Robert Clabourn Hamilton. The two married in Brussels in 2010, where gay marriage is legal, and contacted authorities in Romania about securing Hamilton a residence permit. Romanian authorities said Hamilton was only allowed to stay for a maximum three months, as gay marriage is not legal in Romania or recognized. They argued that he couldn't be classified as a "spouse" of an EU citizen.

The couple challenged the issue in Romanian legal system, where it rose to Romania's constitutional court. The court then deferred to the ECJ, asking them to rule on whether Hamilton could be considered a "spouse" of an EU citizen.

Read moreGermans celebrate first gay marriages

Same-sex marriage in force

What does this decision mean for the EU? Tuesday's ruling means that the bloc's currently 28-member states must grant residency permits to non-EU spouses of EU citizens — regardless of their sex. Until this point, the EU's freedom of movement directive primarily applied to heterosexual couples.

The decision stops short, however, of legalizing gay marriage in the European Union as the court said individual members must decide for themselves.

Hot button issue in Romania: Gay marriage and same-sex civil partnerships aren't currently legal in Romania, although the constitution defines marriage as a union between spouses. However, politicians in the country's ruling Social Democratic Party floated the idea of legalizing partnerships between same-sex couples in March. They're also considering holding a referendum in the fall on whether or not to define marriage as a union between a man and a woman in the constitution.

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