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CCR explains ruling in the Coman-Hamilton case: Gay relationships fall under the concepts of “private life”, “family life”

The relationship of a same sex pair falls under the concepts of “private life” and “family life”, the same as in the case of a heterosexual couple, reads the Romanian Constitutional Court’s reasoning of the ruling it pronounced in the Coman-Hamilton two months ago.

On July 18, the Constitutional Court of Romania (CCR) admitted the appeal related to the constitutional challenge in the Civil Code in the Coman-Hamilton gay marriage case, ruling that the same sex spouses have the right for free movement and right to reside in Romania.

Enforcing what the European court had ruled in interpreting the European norms, the Constitutional Court acknowledges that the relationship a same sex couple has falls under the concepts of <private life> and “family life>, similar to a relation established in a heterosexual couple, a fact which determined the incidence of the protection of the fundamental right for private life and family life, as guaranteed by article 7 in the Charter of Fundamental Rights of the European Union, by article 8 in the European Convention for the Protection of Human Rights and Fundamental Freedoms and by article 26 in the Romanian Constitution.

By enjoying the right to private and family life, the same sex people who form a stable couple, have the right to express their personality inside these relations and to benefit, in time and by the means stipulated by the law, of a legal and court acknowledgement of the corresponding rights and duties,” reads the CCR reasoning.

“Oops! Referendum! Checkmate from CCR! Historical ruling of CCR-literally! CCR says the same sex couple falls under the concept of family life and has the right to express and be legally recognized!“, reacted the president of the National Council for Combating Discrimination, Csaba Asztalos.

Previously on June 5, the European Court of Justice had ruled that “the term ‘spouse’ within the meaning of the provisions of EU law on freedom of residence for EU citizens and their family members includes spouses of the same sex.” The ECJ argued that „although the Member States have the freedom whether or not to authorise marriage between persons of the same sex, they may not obstruct the freedom of residence of an EU citizen by refusing to grant his same-sex spouse, a national of a country that is not an EU Member State, a derived right of residence in their territory.”

Adrian Coman, having both Romanian and American citizenship, married an American citizen, Robert Hamilton in Brussles in 2010, after they have lived together for four years before marriage. The two have sued the Romanian state, after they had been denied the acknowledgment of their marriage officiated in Belgium and the right for residence in Romania.

In December 2012, Coman and his husband contacted the Romanian authorities to request information on the procedure and conditions under which Mr Hamilton, in his capacity as a member of Coman’s family, could obtain the right to reside lawfully in Romania for more than three months. That request was based on the directive on the exercise of freedom of movement, which allows the spouse of an EU citizen who has exercised that freedom to join his husband in the Member State in which the husband is living.

In response to that request, the Romanian authorities informed Coman and Hamilton that the latter only had a right of residence for three months, on the ground, in particular, that he could not be classified in Romania as a ‘spouse’ of an EU citizen as that Member State does not recognise marriage between persons of the same sex (‘homosexual marriage’).

The two therefore brought an action before the Romanian courts seeking a declaration of discrimination on the ground of sexual orientation as regards the exercise of the right of freedom of movement within the EU. Asked to rule on an objection of unconstitutionality, raised in those proceedings, the Constitutional Court of Romania has asked the Court of Justice whether Hamilton may be regarded as the ‘spouse’ of an EU citizen who has exercised his right to freedom of movement, and must therefore be granted a permanent right of residence in Romania.

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