Romania's refusal to recognize gay marriage does not mean it can deny residency rights to a citizen's American husband, an adviser to the EU's top court said Thursday.
Although the decision has been approved by members of the ECJ, a final decision is still to be approved in a full court case.
Adrian Coman, a Romanian, and Claibourn Robert Hamilton, an American, married in Belgium in 2010, seven years after the country legalized same-sex marriage.
"Although member states are free to authorise marriage between persons of the same sex or not, they may not impede the freedom of residence of an European Union citizen by refusing to grant his or her spouse of the same sex, a national of a non-EU country", Wathelet said in his opinion.
European Union citizens have the right to bring their spouses to live with them in a member country. Romania's constitutional court then referred the case to the ECJ.
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"In his opinion delivered today, advocate general Melchior Wathelet states, first of all, that the legal issue at the centre of the dispute is not that of the legalisation of same-sex marriage, but that of the free movement of European Union citizens", the court said in a statement.
Judges are not bound by the advocate general's view, but tend to follow it.
A senior adviser to the European Union's top court has backed a Romanian gay man's right to have his USA husband live with him in Romania.
He noted that "same-sex marriage will be possible in Austria too", by this time next year. In that regard, the Advocate General recalls that the European Court of Human Rights (ECtHR) has recognised that same-sex couples, first, can enjoy a family life and, second, must be afforded the possibility of obtaining legal recognition and protection of their unions. "Statistical investigations confirm it; the authorization of marriage between persons of the same sex in a referendum in Ireland also serves as an illustration". In fact, this kind of marriage is now recognized in all continents.
Earlier in the opinion, Wathelet focus on one of the less traditional aspects of Coman and Hamilton's relationship. The couple, who met in NY in 2002 and are both 46, married in Belgium in 2010 after living together for four years in the US. They would have been compelled to do so had Mr Coman's partner been of the opposite sex. "The fact that the couple do not live together can not in itself have any effect on the existence of a proven stable relationship - which is the case - and, consequently, on the existence of a family life".