The European Court of Justice (ECJ) ruled recently 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.
Read more: Same-sex spouses have equal residency rights across EU, top court rules | The Krakow Post
