Same-sex spouses have equal residency rights across EU, top court rules

The European Court of Justice (ECJ) ruled on Tuesday that all member states must grant residency rights to same-sex spouses, regardless of whether or not such unions may legally be officiated in that country.

The decision has direct implications for Poland and six other countries in which same-sex marriage is not recognized by national law – and it is already drawing criticism from traditionalists and euroskeptics alike.

The case originated in Romania, where native Adrian Coman was fighting for residency rights for his American husband, Clai Hamilton. They had married in 2010 in Brussels, where Coman worked for the European parliament. However, like Poland, Romania does not recognize same-sex partnerships, and after being challenged in the Romanian constitutional court the case was referred to the ECJ.

According to European Union law, a non-EU citizen is allowed to reside in the same member state as their EU citizen spouse. This word “spouse” turned out to be key, as ultimately Europe’s highest court ruled that the term was gender-neutral.

The decision narrowly affects residency rights – it does not touch the status quo of allowing EU member states to determine their marriage laws on an individual basis.

Nevertheless, some see it as an over-assertion of power by Brussels. Few countries are warier of this than Poland, which, along with Latvia and Hungary, sent representatives to a hearing Luxembourg last year to argue against the gay couple’s claim.

For his part, ECJ president Koen Lenaerts seemed not to disagree that this could be part of a larger push to unite the EU in recognizing same-sex marriage generally, calling the debate “exactly the same” as the one in the US. (In 2015, the US Supreme Court struck down several states’ same-sex marriage bans in a ruling against Ohio’s refusal to recognize a same-sex marriage performed in Maryland, essentially legalizing it everywhere.)

Whether or not the government of Poland – which remains relatively Catholic and conservative compared to most of the EU – decides to resist the ruling remains to be seen. It would not be the first time that Warsaw has bucked Brussels: Last year the government drew the ire of the European Commission for its highly controversial court reforms, and it defied an order by the ECJ to halt logging in the ancient Białowieża Forest on the pretense of “public safety.”

Furthermore, it is still possible for courts in Romania to appeal the verdict of this particular case, a process which could take up to two years.

LGBTQ activists, on the other hand, are celebrating the EU court’s decision as a watershed moment for their rights. Campaign Against Homophobia (Kampania Przeciw Homofobii), founded by Polish politician and gay icon Robert Biedroń, said that they look forward to the reaction of the government, calling the ruling evidence that “two million [LGBTQ] citizens cannot be ignored.”

There is a complex and inconsistent history of gay rights in Poland, where, exceptionally, homosexuality has never been criminalized. Now Poland joins Bulgaria, Latvia, Lithuania, Romania, and Slovakia in prohibiting gay marriage. The 22 other EU member states recognize gay marriage and/or civil partnerships between same-sex couples.

Agata Pankow contributed to this report.