CCR: Spouses of the same sex have the right to reside and freely move in Romania

The Constitutional Court of Romania (CCR) has admitted on Wednesday 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. However, the constitutional judges in Romania has not given a verdict in terms of acknowledgment of the gay marriage.

“The CCR has admitted that the notified texts are constitutional considering the right for free movement and residence on Romania’s territory. We have not ruled regarding the acknowledgement of the marriage. We have acknowledged in the spirit of the European Court of Justice decision (editor note: ruled in early June),” said the CCR head, Valer Dorneanu.

“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 European Court of Justice has ruled on June 5  in the case of a gay marriage between a Romanian citizen and an American national.

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.”

Practically, following the ECJ ruling in June, the gay marriages were acknowledged and the Coman-Hamilton case returned to the constitutional judges in Romania.

The Constitutional Court (CCR) judges had postponed in November 2016 a decision on the plea of unconstitutionality by which a gay couple married in Belgium demands the acknowledgement of the marriage in Romania, and will seek an opinion from the European Court of Justice.

The CCR Chairman Valer Dorneanu, said back then that the CCR will request an opinion from the ECJ, at the request of the parties.

The exception of unconstitutionality was first debated by the Constitutional Court on July 20, 2016, the main arguments put forward being related to the recognition of the fundamental right to privacy. The head of the National Council for Combating Discrimination (CNCD) then pleaded for the recognition of marriage.

The authors of the objection of unconstitutionality have challenged Article 277, paragraphs (2) and (4) of the Civil Code, which relate to the ban on Romanian territory of the recognition of same-sex marriages concluded abroad, namely the freedom of movement within the European Union.

The issue of homosexual couples is extremely sensitive to Romanian society especially that in parallel a popular initiative has been submitted to Parliament, signed by more than three million people, to Constitutional review to redefine the meaning of family. Thus, the initiators want to write in black and white in the constitution that the family consists of a man and a woman, thus eliminating the possibility of any future legislation to allow same sex marriages. Currently, the Romanian Constitution provides that “the family is created through free marriage between spouses”.

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.