Paying Lip Service to the CJEU: The Unsurprising Decision of the Constitutional Court of Romania in the Coman Case
On June 5, the Court of Justice of the European Union (‘CJEU’) held in Coman and Others that Member States should grant a right of residence to same–sex spouses of EU citizens when they exercise their right to freedom of movement (more on this judgement and its limitations here and here). The CJEU judgement in Coman comes after the Constitutional Court of Romania (‘CCR’) referred a preliminary question to the CJEU. Having the answer from the CJEU, the CCR delivered its decision.
The case before the CCR regards the constitutionality of paragraphs 2 and 4 of Article 277 of the Romanian Civil Code. These state that same-sex marriages concluded abroad are not recognized in Romania but that, in spite of this, the provisions on the freedom of movement of EU citizens still apply. On July 18, Valer Dorneanu, the president of the CCR, announced that in the CCR’s view, these provisions “are constitutional to the extent that recognize the right to freedom of movement and residence on the Romanian territory”. He added that the CCR reached this conclusion “in the spirit of the CJEU judgement” and that the Court “did not rule on the recognition of [same-sex] marriage”. Thus, the Court made it clear that in its view, same-sex couples in Romania should not have more rights than strictly required by the CJEU.
The reasoning of the Court in this decision should be available in the forthcoming weeks. Until then, it is worth noting that this outcome is not surprising. On the one hand, the CCR could not have bypassed the judgement of the CJEU. On the other hand, the CCR is not known as a champion of equal rights. Thus, it was an easy guess that the Court would not give same-sex couples rights beyond the minimum required by the CJEU, although under its mandate, it could have done so.
The CCR was confronted with the question of sexual orientation twice before the Coman case.
The first time was in 1994, when homosexuality was still criminalized in Romania. At that time, in Decision 81/1994, the CCR, due to Romania’s accession to the European Convention on Human Rights, held that homosexual acts should be criminalized only if they take place in “public” or create “public scandal”. However, since “public” and “public scandal” could have been interpreted broadly, the decision of the CCR did not make any difference in practice.
The second time was in 2016, when the Court had to rule on the constitutionality of a popular initiative meant to define family in the constitutional text as the union between a man and a woman. Among others, the CCR had to decide whether the proposed constitutional amendment would suppress “citizens’ fundamental rights and freedoms”, in which case the amendment would have been prohibited under Article 152 (2) of the Constitution. In Decision 580/2016, the Court concluded that defining marriage in heterosexual terms in the constitutional text did not suppress any fundamental rights or freedoms and it gave the green light to the proposed amendment. The decision was criticized in harsh terms by constitutional law specialists because of its content and poor drafting. The substance of the proposal to review the constitution was analyzed in just one paragraph (paragraph 42) and only from the perspective of the right to family (based on marriage bonds), although the suppression of more fundamental rights should have been analyzed.
ACCEPT and MozaiQ, Romania’s main LGBTQ+ organizations, both welcomed the decision of the CCR in the Coman case (here and here), but emphasized its limitations and the fact that same-sex couples need legal recognition beyond the rights to freedom of movement and residence. It is precisely because of these limitations that one can conclude that the CCR did nothing else but pay lip service to the CJEU. The CCR never referred to the CJEU for a preliminary ruling before the Coman case. Such referral gave the CCR the opportunity to absolve itself of the responsibility and signal once again to the Romanian society that LGBTQ+ rights are nothing else but an imposition from the EU.
[Update: On 27 September 2018, the Romanian Constitutional Court released the full reasoning of its decision in the Coman case. The press release of the CCR and the declarations of its president in July, when the holding of the Court was first announced, implied that the Court refused to give more rights to same-sex couples married abroad than strictly required by the CJEU (i.e. the rights to freely move and reside in Romania). Despite this, the Court surprised human rights activists when it published its full decision. The Court concluded that the family life of same-sex couples is protected by the Constitution and that LGBT people living in a stable relationship should be granted, in time, “the legal […] recognition of their rights and obligations” (paragraph 41 of Decision 534/2018). Many see this statement of the Court as imposing an obligation to recognise civil partnerships in Romania.]