Coman v. Romania: much ado about nothing?

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Much ink has been spilled already writing about the decision of the Luxemburg based European Court of Justice („ECJ”) in Coman v. Romania which was issued on June 5. While the decision is narrow, the broader question is whether the Coman case accomplished what it set out to do. Not really. There is great discrepancy between what Mr. Adrian Coman, the Petitioner, has asked for and what, so far, he has been able to attain to further the cause of same-sex marriage in Romania. The short answer is that he has secured derivative residency status for his same-sex spouse in Romania, but not the right to have his same-sex marriage recognized there.

Who is Mr. Coman? Born in Romania, many years ago Mr. Coman obtained a lottery visa which landed him the status of permanent resident of the United States. He moved to New York where he met a Black man from Texas whom he married in 2010. Mr. Coman did not have a stable life or profession. He did well in America’s universities but then moved back to Europe to work as a clerk for one of Romania’s members in the European Parliament in Brussels between 2009 and 2012. While in Brussels he married his partner in 2010. In December 2012 Mr. Coman petitioned Romania’s authorities to allow his spouse to reside in Romania, but his plea was rejected.

The denial was based on several and very important factors: Romania explicitly forbids same-sex marriage, does not recognize same-sex marriages formed abroad, either between citizens of foreign states or between a Romanian citizen and a foreign citizen, does not provide for civil partnerships, and does not recognize civil partnerships concluded abroad. So, Mr. Coman’s dilemma was easy to understand: his spouse could not reside in Romania for longer than three (3) months at a time, the equivalent of a tourist visa.

Mr. Coman and his spouse returned to New York where they live now, but sued Romania in Romanian courts claiming that provisions in Romania’s Civil Code which prohibit same-sex marriage or the recognition of same-sex marriages contracted abroad are unconstitutional under Romania’s Constitution. The Romanian Constitutional Court did not rule on the matter but transferred the case to the ECJ to interpret the meaning of „spouse” for purposes of the right of European Union citizens to have their spouses reside in a country which is part of the European Union. The specific question was whether the word „spouse” should be interpreted to mean „husband and wife” or, also, „spouses” of the same sex.

The referral to the ECJ was unusual and not even necessary because a 2004 Directive of the European Union already directed that same sex and opposite sex couples made up of citizens of the European Union, whether married or holding the status of civil unions, had the right to jointly reside in any other state member of the European Union. On the surface, then, the matter was a no-brainer and could easily have been settled by Romania’s Constitutional Court. Nevertheless, instead of the Constitutional Court swiftly rejecting Mr. Coman ‘s constitutional challenges, it forwarded the matter to the ECJ. What motivated the Constitutional Court to do so remains a matter of speculation, but a very likely reason is the unfolding currently of a competing citizens-initiated national referendum to define marriage in Romania’s Constitution as the union between a man and a woman.

It took the ECJ more than a year to address the Coman matter but on June 5 it issued its ruling holding that: (1) the word „spouse” for purposes of the 2004 Directive includes persons of the same sex; (2) the foreign „spouses,” whether same sex or opposite sex, of citizens of the European have the derivative right to reside in the European Union even if they are not citizens of a state which is a member of the European Union; (3) state members of the European Union have the right to define marriage as they see fit, including excluding from the definition marriages which consist of persons of the same sex; (4) there is no EU-wide right to same-sex marriage; and (5) EU member states do not have the obligation to recognize same-sex marriages formed in other countries.

What is next for Mr. Coman? The Romanian Constitutional Court announced that it will issue a ruling in his case on July 6. It likely will comply with the ruling of the ECJ and hold that Romania must grant residency to spouses of Romanian citizens married abroad, whether of the same sex or opposite sex.

However, even if it decides to entertain the attacks launched by Mr. Coman on grounds of unconstitutionality, which it may very well do, it will likely decide that Mr. Coman does not have the right to have his same-sex marriage recognized in Romania.

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