After the celebration: Marriage equality in EU Law post- Coman in eight questions and some further thoughts

Abstract

This paper provides a detailed critical analysis of the case of Coman, where the Court of Justice clarified that the meaning of the term ‘spouse’ in Directive 2004/38 was gender-neutral, opening up the door for same-sex marriage recognition for immigration purposes all around the EU, thus destroying the heteronormative misinterpretations of the clear language of the Directive practised in a handful of Member States. The state of EU law after Coman is still far from perfect, however: we underline a line of important questions which remain open and which the Court will need to turn to in the near future to ensure that marriage equality moves beyond mere proclamations in the whole territory of the Union.

1. Introduction

The case of Coman, ¹ decided on 5 June 2018, is akin to a lemma proven: totally foreseeable in terms of result, yet an achievement in terms of elegance and depth, leading to the further development of equality and non-discrimination law in Europe. It is unsurprising, therefore, that by now the judgment has received numerous unanimously praising annotations in leading academic journals. ² Our contribution, in contrast, embeds the Coman case within a significantly more critical plethora of arguments, mapping a wider alternative paradigm for the emancipation of sexuality and family life – not necessarily only gay and lesbian – via European Union (EU) law. This analysis will articulate the shortcomings of the judgment along with the distressing ineffectiveness of the European Commission. Indeed, the inefficiency of EU institutions, especially the Commission, in taking equality seriously permitted several Member States to ignore the crystal-clear text of the Citizenship Directive ³ for almost 15 years and nothing has been done to bring them to compliance. This led to a uniquely heteronormative approach to core rights in the internal market and mirrored the Commission’s resounding failures in the context of the pre-accession exercise, which brought Romania – one the perpetrators of this injustice – into the EU.

In this article, while celebrating the preliminary ruling of the Court of Justice of the EU (CJEU) on otherwise a perfectly clear provision in secondary EU law, we draw attention to and discuss eight burning issues that arise from the Coman ruling. Besides posing questions regarding the Commission’s effectiveness as the guardian of the Treaties (1), we interrogate the deficiencies of single-purpose marriage recognition and question the speed of the eventual spill-overs of such recognition into other fields outside immigration per se (2). We demonstrate that Coman is a textbook example of the free-movement paradigm of non-discrimination at work, which is, besides obviously being accepted in EU law, also deeply questionable from the standpoint of equality and human rights thinking, since those who do not move within the internal market might also want to have a family. ⁴ ‘You have not crossed a border we have pledged to make irrelevant’ is not always a convincing answer from the point of view of non-discrimination (3). Issues of coherence among different instruments of secondary EU law equally arise (4), just as the issue of ‘genuine residence’, which Coman brings up, whatever this might mean in the 21st century with its fast pace of life and increasing numbers of people – not all of them heterosexual – living between countries and homes (5). Numerous questions arise as a result of the natural conflict, which is omnipresent, between principles of EU law and private international law approaches (6). The CJEU’s language of ‘strengthening family life’ is both dangerous and out of place, in our respectful opinion, which is informed by the desire to keep the Court out of Europeans’ (and Americans’, as in Coman) spousal beds (7). The last issue we raise is the question of ‘what’s next’ for others who are still arbitrarily persecuted by EU and national law and for those (and how many of them!) that they love. Once the principle is established that states should not interfere with our sexuality without imperative reasons of the public good – what the LGBTQ community has been subjected to abundantly and still suffers from, and which Coman is a wonderful illustration of – the same test is bound to apply in other contexts, especially polygamy and other persecuted or ‘non-recognized’ loving relationships. Coman thus offers a step – albeit a very small one – in the direction of limiting the power of the public authorities to arbitrarily limit the Karstean freedom of intimate association; ⁵ a small step in the direction of freedom and dignity for countless people who are constantly persecuted for whom and how they love, even as the situation of the LGBTQ community is improving (8). But first we turn back to the facts and the context of the case, and praise the Court for a significant achievement, which righted the unfortunate failure of the Commission to ensure the basic applicability of the Directive 2004/38 to gay European citizens.

Despite our more nuanced, if not critical, interpretation of the judgement, the central – albeit entirely foreseeable – aspect remains indisputably laudable. Namely, the Grand Chamber of the CJEU clarified that the gender-neutral framing of ‘spouse’ in Article 2(2)(a) of the Citizenship Directive 2004/38 implies that, yes, indeed, married same-sex couples enjoy free movement rights equally to heterosexual married couples throughout the whole territory of the Union, no matter how a particular Member State frames ‘family’ in its own legislation. This now includes situations where a gay marriage remains unrecognized in violation of ECHR law, as Article 8 ECHR contains a positive obligation to this effect, ⁶ which is of sufficiently general nature, ⁷ while differences based solely on sexual orientation are outlawed. ⁸

This was exactly the case in Romania, where a Romanian-American, Mr Coman, wished to move in together with his American husband, Mr Hamilton. Discrimination on this ground is thus not any more inherent in the fabric of the internal market ⁹ – a development as long awaited, ¹⁰ as it is absolutely welcome, finally putting a full stop to a long esoteric debate concerning who should be entitled to define ‘spouse’ and what the term should mean. ¹¹

This article will first present the facts and the law involved, as well as the turbulent context of a referendum, held in the Romania on 6 and 7 October 2018, to entrench the heteronormativity of the families recognized by law into the national constitution, akin to the ones in Bulgaria, Croatia, Hungary, Latvia, Lithuania, Poland and Slovakia. We will then set out, very briefly, the key lines of argument in Advocate General Wathelet’s Opinion, and summarize the decision of the Court.

Having situated the Grand Chamber’s ruling in context, and explained the core achievements of the case, we will move to the analysis of the numerous outstanding problems the case failed to tackle, articulated in the eight issues mentioned above, and give some concluding thoughts on the non-desirability of the ‘sexual market citizenship’. Without any doubt, 5 June 2018 is bound to remain a notable date on the calendar of achieving marriage equality, yet, crucially, our analysis will demonstrate that the EU is just at the beginning of a long road and plentiful crucial issues remained unresolved. The federalization of equality rights in the EU is a vitally important ongoing development ¹² to which Coman has greatly contributed: EU sexual citizenship has just received a pivotal boost. ¹³

2. The case of Coman in the context of Romanian developments

The gender-neutral language of the EU Citizens’ Free Movement Directive 2004/38/EC applicable to family unions and partners is undisputable. ¹⁴ Several regimes for married, registered and unregistered partners are established: ¹⁵ if a same-sex couple is married and the marriage is recognized in their previous Member State of residence, then EU law unquestionably requires the host state to recognize the marriage and makes family unification in the host-state automatic, irrespective of the nationality of the spouse of the EU citizen. The wording of the Directive is crystal-clear. In practice, however, host states not recognizing same-sex marriages often obstructed the practical enjoyment of the right of a spouse to join their partner, ¹⁶ either refusing recognition all together, or treating marriage as a registered partnership, where the rules applicable under the Directive are more restrictive.

Two situations are possible in the case of a registered partnership. Should the host Member State treat registered partnerships as equivalent to marriage, an individual then has the right to join his or her partner as if they were spouses. ¹⁷ If the host state does not treat registered partnerships as equal to marriage, then the couple falls into the category of unregistered partners in a ‘durable relationship’. ¹⁸ EU law creates no obligation to recognize registered partnerships as such. Instead, the Directive obliges Member States to ‘facilitate entry and residence’ to unregistered partners who are in a ‘durable relationship’. This blurry rule applies equally to same-sex couples and to couples of the opposite sex. Either registered or unregistered partners thus do not enjoy the same right as a spouse to join their partners. The worst cases arise, however, when a Member State does not recognize any form of same-sex partnerships, leading to a situation when its territory is de facto removed from the geographical scope of application of free movement of persons law of the EU, as far as same-sex (married) partners are concerned. To put it differently: homophobia switches off internal market law in such cases, depriving EU citizens of all their free movement rights.

This third, worst, situation for the (married) same-sex partners was exactly the one at issue in Coman. Following several years of living together in New York, Mr Relu Adrian Coman, who holds Romanian and US citizenship, and Mr Robert Clabourn Hamilton, an American citizen, got married in Brussels in 2010, where Mr Coman took up residence to work as a parliamentary assistant at the European Parliament. Such a marriage would not be possible in Romania, a country among the last of all the current Member States of the EU to decriminalize homosexuality and one that does not offer the institutions of either marriage or partnership for same-sex partners. Following several years in a long-distance relationship, Coman and Hamilton decided to settle in Romania, and Mr Coman applied for a residence-permit for his American husband based on the family reunification clause of Directive 2004/38 applied by analogy to EU citizens returning to their Member State of nationality having exercised free movement rights. Expectedly, Romanian authorities refused to abide by the Directive, explaining their decision by non-recognition of ‘homosexual unions’ in Romania. Supported by the reputable LGBT organization Asociaţia ACCEPT, the couple appealed the decision of the Romanian authorities. ¹⁹ When their case reached the Constitutional Court of Romania (Curtea Constituţională), the court decided to stay the proceedings and submitted a preliminary reference to the Court of Justice to clarify the conditions under which Mr Hamilton may be granted the right to reside in Romania for more than three months.

Unlike the constitutions of Bulgaria, Croatia, Hungary, Latvia, Lithuania, Poland and Slovakia, the Romanian Constitution contains a gender-neutral phrasing surrounding ‘family’. The same is not true of the Romanian Civil Code (Codul Civil). It not only defines marriage as the union of a man and a woman, ²⁰ but also stipulates – in a rather atypical manner for continental civil codes – that ‘marriage between persons of the same sex shall be prohibited’ and, even more specifically, ‘marriages between persons of the same sex entered into or contracted abroad by Romanian citizens or by foreigners shall not be recognized in Romania’. ²¹ Far from being dead-letter, the formulation contained in Codul Civil in fact affected the meaning that the Constitutional Court of Romania has given to the gender-neutral provision of the constitution. In other words, the case of Coman arose in a very hostile legal context.

Romanian public life, which is marked by countless scandals, mass protests and corruption, ²² also traditionally includes an strong homophobic line to it, fuelled by ‘traditionalist’ NGOs and the Orthodox Church. The centre-stage here is occupied by the Romanian ‘Campaign for Family’ NGO Coalition, which collected 3,000,000 signatures in the span of six months in 2016 in order to hold a national referendum to amend the Constitution of the country. This initiative aimed at replacing a gender-neutral definition of marriage with a restrictive one, presenting marriage as a union between a man and a woman. This is a truly significant number of signatures for a country of less than 20 million inhabitants, particularly so, given that under national law just half a million signatures create a binding legal obligation to initiate the process. Astonishingly, the Romanian Constitutional Court did not see any problem with the substance of the proposed amendment, alleging in fact that it could be unnecessary given that, although gender-neutral, the relevant provision of the Constitution ²³ already implied the prohibition of same-sex marriage, as Constantin Cojocariu reported. ²⁴

The referendum, held in October 2018, failed due to low turnout – only 20% of the voters, instead of at least 30% required, showed up to vote. It is clear nevertheless that the country has not moved far away from its pre-accession stance, where parliamentarians worried that the membership of the EU could actually undermine the situation of steep discrimination against sexual minorities and when the Romanian Orthodox Church campaigned incessantly against the decriminalization of homosexuality. ²⁵ Indeed, EU accession was not supposed to mean ‘entering Sodom and Gomorrah’. ²⁶ However obvious, legally speaking, Coman could thus be regarded as particularly significant in the context in which it arose, given the depth of change it requires of the Romanian authorities.

3. Opinion of the Advocate General and the Court’s judgment

Advocate General Melchior Wathelet delivered his Opinion on 11 January 2018. The Opinion was primarily based on an exploration of two potential theories of interpretation of the available secondary law of the Union. The applicants, the Dutch Government and the Commission agreed that Article 2(2)(a) of Directive 2004/38 should be given a uniform autonomous interpretation, according to which the national of a third country of the same sex as the Union citizen to whom he or she is lawfully married in accordance with the law of a Member State falls under the term ‘spouse’. By way of contrast, the Romanian, Latvian, Hungarian and Polish governments maintained that the term ‘spouse’ falls outside of the scope of EU law, and therefore must be defined in view of the law of the host Member State. ²⁷ The AG agreed with the former approach, considering that the autonomous interpretation must be applied and that the term ‘spouse’, as used in Article 2(2)(a) of Directive 2004/38, must be independent of the sex of the person who is married to a Union citizen. ²⁸ The AG further examined the Latvian government’s argument regarding the justification by ‘national identity’ on behalf of Romania regarding the supposedly sensitive status of marriage. In relation to this, the learned AG considered that, if the concept of marriage were to be related to the national identity of certain Member States, the obligation to respect that identity, which is set out in Article 4(2) TEU, cannot be construed independently of the obligation of sincere cooperation set out in Article 4(3) TEU. ²⁹

Furthermore, the AG considered the drafting history of Directive 2004/38, and concluded that the term ‘spouse’ was intentionally neutral. ³⁰ The AG observed that while the term ‘spouse’ had been used by the Commission in its initial proposal, the Parliament incorporated reference to the irrelevance of the sex of the person concerned by adding the words ‘irrespective of sex, according to the relevant national legislation’. However, the Council expressed its reluctance to define ‘spouse’ as expressly including spouses of the same sex. At that time, only two Member States had adopted legislation authorizing marriage between persons of the same sex and, additionally, the Court had held that the definition of marriage generally accepted by Member States referred to a union between two persons of opposite sex. Based on the Council’s concerns, the Commission chose to ‘restrict [its] proposal to the concept of spouse as meaning in principle spouse of a different sex, unless there are subsequent developments’. ³¹ Therefore, the AG considered that no argument in favour of one interpretation over the other could be derived from the Directive’s drafting history, ³² and that the wording of ‘spouse’ in the Directive was neutral, on the basis of the context and the objective of the Directive. ³³ Moreover, the AG affirmed that EU law must be interpreted ‘in the light of the present day circumstances’ ³⁴ and, based on statistical and comparative studies from numerous European jurisdictions regarding the scope of fundamental rights, ³⁵ concluded that the broad interpretation of the term ‘spouse’ provides the optimum respect for family life guaranteed in Article 7 of the EU Charter of Fundamental Rights, while leaving discretion to Member States to authorize – or not – marriage between persons of the same sex. ³⁶ Similarly, the AG reckoned that the objective pursued by Directive 2004/38 supported a broad, autonomous interpretation of ‘spouse’, that is independent of sexual orientation ³⁷ The AG also proposed an alternative to the Court, in the event that it did not follow his suggested reasoning regarding the interpretation of ‘spouse’. If Mr Coman’s husband was not a spouse due to Romanian law, he must be considered a partner or other family member under Article 3 of the Directive. The AG argued that due to the marital bond recognized by another Member State, there would be no discretion to refuse admission in this case. ³⁸

The Court agreed with the AG and the majority opinion in the literature that the meaning of the text was crystal-clear. ³⁹ In its preliminary observations, the Court outlined its major finding: that if during the genuine residence of a Union citizen in a Member State other than that of which (s)he is a national, family life is created or strengthened, the TFEU obliges that the citizen’s family life may continue when (s)he returns to the Member State of origin. ⁴⁰ Although the Directive, which aims to regulate the rights of EU citizens outside of their Member State of nationality, would not apply to such cases directly, Article 21(2) TFEU is unquestionably analogous. ⁴¹ If no derived right of residence were granted, the Union citizen would be discouraged from exercising his or her rights under EU law. As such, the Court based the questions referred by the national court on the premise that, during the period of his genuine residence in Belgium, Mr Coman created or strengthened a family life with Mr Hamilton. ⁴² The Court then unequivocally concluded that the term ‘spouse’ within the meaning of Directive 2004/38 was gender-neutral. It therefore covered the same-sex spouse of the Union citizens concerned. ⁴³ Consequently, a Member State cannot rely on its national law as justification for refusing to recognize in its territory a marriage concluded by that national with a Union citizen of the same sex in another Member State, in accordance with the law of that State, for the sole purpose of granting a derived right of residence to a third-country national. ⁴⁴ However, a person’s status, relevant to the rules of marriage, continues to fall within the competence of Member States, and EU law does not detract from that competence. Accordingly, Member States are able to decide whether or not to legislate in favour of marriage for persons for the same sex. ⁴⁵ Nevertheless, the Court stressed that it was well-established in its case law that, in exercising this competence, Member States must comply with EU law, in particular the Treaty provisions on the freedom conferred on all Union citizens to move and reside in the territory of the Member States. ⁴⁶

The Court also added to the observations of the Advocate General, ⁴⁷ holding that to allow Member States the freedom to refuse residence in their territory to a third-country national whose marriage to a Union citizen was concluded in another Member State in accordance with the law of that State, based on whether national law allows marriage to persons of the same sex, would cause free movement of Union citizens to vary between Member States. Such a situation would not accord with the Court’s case law as, in light of its context and objectives, the provisions of Directive 2004/38 cannot be interpreted restrictively and may be deprived of its effectiveness. ⁴⁸

Based on this finding, the Court then assessed possible legal justifications for such a restrictive measured in place in Romania. To be justifiable, this measure must be based on objective public interest considerations and proportionate to a legitimate objective pursued by national law. ⁴⁹ Latvia and Poland, in their submissions to the Court, referred to public policy and national identity considerations as legitimate and relevant public interest reasons for several Member States. ⁵⁰ In relation to this, the Court noted that public policy may be relied on only if there is a genuine and sufficiently serious threat to a fundamental interest of society, ⁵¹ which did not appear to be applicable in the present case. The Court considered that the recognition of a same-sex marriage registered in another Member State for the sole purpose of granting a derived right of residence does not undermine the institution of marriage in Romania. ⁵² Later in its judgment, the Court strengthened its view by referring to provisions of the EU Charter of Fundamental Rights and the European Convention on Human Rights in relation to family rights and privacy. ⁵³ Accordingly, the Court held that the TFEU must be interpreted as preventing Romanian authorities from refusing to grant a third-country national spouse a right of residence in Romania on the basis that Romanian law does not recognize marriage between persons of the same sex. ⁵⁴ Similarly, the Court concluded that this right for third-country nationals such as Mr Hamilton, who are married in another Member State recognizing same-sex marriage, goes hand in hand with the right to reside in the territory of Romania for more than three months. ⁵⁵

4. Coman as an unquestionable achievement of the Court of Justice

The Court’s decision in Coman is unequivocal. It refers to a standard situation when a Union citizen has made use of the freedom of movement by taking up genuine residence in a Member State other than that of which (s)he is a national. In this case, Article 21(1) TFEU must be interpreted as precluding the competent authorities of the Member State of the Union citizen from refusing to grant their third-country national spouse a right of residence in the territory of that Member State. This is precluded if the national law of that Member State does not recognize marriage between persons of the same sex for the purposes of residence in that Member State. More importantly, the Court refused to extend public policy derogations available in EU primary law to moralistic concerns of the Member States. The Court did not impose on all the Member States an obligation to introduce an institution of same-sex marriage or partnership; doing this would be both questionable in terms of EU competence limitations, as family matters lie within the realm of the national law of the Member States, and redundant in the light of the European Court of Human Rights (ECtHR) case law, which has already established such an obligation. ⁵⁶ It did, however, demand single-purpose recognition of the status attached to same-sex marriage where this institution exists in the Member States where it is legally unknown, in order to ensure that free movement can be enjoyed without discrimination on the basis of sexual orientation all across the territory of the Union. Particularly important in this regard is the outright dismissal of the esoteric defence of moral choices to discriminate without any critical scrutiny, clothed by the terminology of ‘constitutional identity’, ⁵⁷ which has played its ambiguous role in the line of case law regarding the right to a name. ⁵⁸ It is thus a most welcome and atypical development, given prior case law, that the ECJ does not use identity excuses in order to humiliate minorities when sexual minorities are involved. ⁵⁹ The absurdity of the ‘protection of the traditional family’ argument, which lies at the core of ‘identity’ considerations, was outlined by AG Wathelet, as well as previously by AG Jääskinen in his Opinion in Römer, ⁶⁰ and, given its obvious clarity, diverging from it would be difficult for the Court.

Hence, indeed, there are no surprises. The outcome and reasoning of Coman has been awaited in the literature for years, and has been discussed at countless conferences, including the meetings uniting renowned authorities in the field of EU law, such as London-Leiden seminars. ⁶¹ All types of interpretations of the Directive in question; its drafting history; ⁶² as well as parallels with other fields where mutual recognition is similarly required in the context of the lack of EU’s legislative competence, in particular the recognition of names; ⁶³ with all the rich case law at hand – all warrant the conclusion that Coman is among the best-founded decisions of the Court in its history from the viewpoints of legal certainty and the articulation of the letter and the spirit of the law.

The outcome was mandated by the language of the relevant legal provisions since their inception, and could thus only seem problematic in the context of EU law, where the key principle, to agree with Somek, is the lack of clarity. ⁶⁴ Even a purposefully gender-neutral ‘spouse’ in the Directive 2004/38 ⁶⁵ was regarded as ‘unclear’ and ‘in need of clarification’. It is now clear: gender-neutral, clarified the Court, indeed means gender-neutral. We read in para. 34 that ‘the term “spouse” […] refers to a person joined to another person by the bonds of marriage’. ⁶⁶ Again, this is the least surprising and among the most-awaited findings of the Court of Justice in the history of EU law. While the opinions regarding the impact of Regulation 1612/68 on the free movement of same-sex couples were divided, ⁶⁷ Directive 2004/38 is much clearer. According to Recital 31 of Directive 2004/38, ‘Member States should implement this Directive without discrimination between the beneficiaries of this Directive on grounds such as [inter alia] sexual orientation’.

Most surprisingly, however, until Coman, the ECJ has not had a chance to demand either absolute mutual recognition of same-sex couples moving between Member States, nor to clarify the meaning of a term ‘spouse’ under Directive 2004/38/EC – the two options that have been evidently open for changing the current practice of national-level non-compliance in a number of Member States. The EU free movement of persons regime has thus tolerated discrimination on the basis of sex and sexual orientation as its starting point, a regrettable situation long described in the literature in detail. ⁶⁸ The early case of P. v. S (1996), ⁶⁹ where the ECJ used a gender equality clause to protect the rights of transsexuals, was already a huge achievement for LGBT rights, considering that back in the 1950s, when the European Economic Community was established, judges all over Europe (including the Council of Europe’s European Commission for Human Rights) employed the language of crime, pathology and deviation when describing any alternative sexuality or gender identity. ⁷⁰ Indeed, the WHO removed homosexuality from its list of diseases only in 1992. ⁷¹ P. v. S. was of little help to lesbian and gay couples, however, as the ECJ refused to apply its sexual discrimination approach to such relationships. ⁷² This produced a truly shaky, if not outright shameful, jurisprudence that has now been laid to rest, ⁷³ though not explicitly overruled (the question ‘why not’ remains). In the EU of Grant v. SWT, gay couples remained entirely unprotected, the calls to the contrary from the European Parliament notwithstanding. ⁷⁴ The introduction of sexual orientation as a ground of discrimination via Article 19 TFEU, and subsequent harmonization of this equality field ‘beyond gender’ by 2000 Equality Directives, has changed the situation slightly, but has not solved the core outstanding problems. ⁷⁵ The Court’s post-2000 jurisprudence has largely failed to make any real breakthroughs regarding recognition of the equal status for same-sex unions, some achievements notwithstanding: ⁷⁶ free movement of persons in the territory of the Member States remained, for gay people, but a promise, a myth. The case of Coman transcends this narrow paradigm of discrimination within employment schemes and extends it to the federal horizons, clearly mimicking the earlier jurisprudence of the US Supreme Court and establishing for gay couples what heterosexuals could enjoy all along: basic protections of free movement of persons in the internal market.

Notwithstanding its significance, Coman, where the Court found that same-sex spouses should enjoy free movement rights in the EU (including the crucial right to return home in Singh situations) ⁷⁷ en par with heterosexual spouses, is not a revolution. In essence, it has established the importance of absolute mutual recognition of each other’s meanings of ‘spouse’ between the Member States for the purposes of EU free movement of citizens law. ⁷⁸ Most fundamentally, however elementary and much expected, the case of Coman has a huge impact on the lives of plenty of same-sex spouses around the EU whose legally-celebrated marriages have not been recognized as a result of the failure of a large number of Member States to implement Directive 2004/38 correctly.

5. A critical view of Coman: Eight problems and open questions

However positive a development, it would be unwise to present Coman in a solely celebratory light. The case poses a number of important questions, which will only be answered in case law and practice in the years to come. Let us have a look at the most important features of the case likely to have lasting significance through either remaining problems, or by providing further food for thought for lawyers and policy-makers.

A. Question no. 1: The Commission’s effectiveness and the failure of conditionality

The case of Coman allows one to ask where the Commission, the ‘guardian of the Treaties’, was in a situation where, for more than 10 years, ⁷⁹ several Member States obviously implemented and applied Directive 2004/38 wrongly toward gay spouses, undermining the letter and the spirit of the law and derailing the lives of countless EU citizens. ⁸⁰ It is quite surprising that no commentator, to our knowledge, actually expected Article 258 TFEU – with all its drawbacks, still a usable instrument ⁸¹ – rather than Article 267 TFEU, to end the obvious injustice and mistreatment of families when the gender-neutral text of the Directive was abundantly clear. After all, equality and non-discrimination are also among the values on which the Union is built upon, as per the Treaty text, most notably Article 2 TEU. ⁸² Although the general ability of the EU institutions to enforce these values has been far from obvious to commentators as of late, ⁸³ the Commission could in fact do much more than bringing Article 258 TFEU cases against the Romanias of our Union. Unlike in cases of rule of law or democracy backsliding – such as Hungary and Poland ⁸⁴ – the values at play in the context of same-sex families are not at the fringes of the acquis, but in the text of the Directive itself, which instantly removes plenty of problems faced by the institution in other value-spheres. ⁸⁵ While nothing has been done – and in this we emphasize the shame of the Commission for not acting – the embarrassment was particularly reinforced by the silence from the Commission on this issue in its regular reports on EU citizenship. Article 258 TFEU is clearly open to the Commission now that Coman has restated the obvious. Given that Romania is not the only state consistently acting in this homophobic fashion, and the fact that ‘spouse’ in the Directive is gender-neutral, it is up to the Commission to ensure that Bulgaria, Croatia, Hungary, Latvia, Lithuania, Poland and Slovakia, whatever their constitutions are said to mandate, all honour same-sex marriages for the purposes of free movement. Even more: all the Member States not providing for same-sex marriage, such as Italy or Slovenia, will have to ensure, in practice and on paper, that the unconditional nature of the admission of same-sex spouses in the situations falling within the scope of application of Directive 2004/38 and of Coman’s Singh-inspired scope, can fully benefit from the automatic nature of spousal admission in Article 2(2)(a) of the Directive, without any illegal attempts to treat spouses as ‘registered partners’. It is now clear that any attempt to do that would be a wrongful implementation of the Directive 2004/38.

An even more acute question arises, however, out of the Commission’s inaction. The Member States recently admitted to the Union and known to be problematic in the context of gender equality – besides Greece, which is a case apart ⁸⁶ – face overwhelming scrutiny from the Commission under the Council’s mandate to implement the conditionality principle. ⁸⁷ Sneaking the twin equality directives of 2000 through the legislative process allowed the Union to move on from the humiliation and ambarassment of Grant. Even so, the Commission admitted states expected to oppose same-sex marriage and the improvement of the rights situation of the LGBT community in the context of a broader ‘Failure of Conditionality’ exercise, ⁸⁸ where anti-gay legislation and practice has not in fact deterred their membership, ⁸⁹ including in particular the case of Romania. ⁹⁰ They have also been free to continue that which had to be solved before they became Member States post-accession. Finally, it would be fair to say that not only the Commission itself, but also other EU institutions have not necessarily been particularly effective in protecting LGBT causes even when they related to their own employees. The case of surrogate adoption by same-sex spouses is particularly emblematic in this regard and worth of a separate investigation, possibly leading to a future case law at the Court of Justice in regard to gay parenthood too. ⁹¹

B. Question no. 2: The sustainability of a single-purpose recognition

There is no secret that Coman is, in essence, about immigration rights. When same-sex spouses move to a Member State which, in breach of the ECHR law ⁹² and the Charter of Fundamental Rights of the EU, ⁹³ refuses to provide any legal form of recognition for same sex-relationships, it unequivocally obliges the Member State to recognize the marriage as such. The consequences of such ‘single-purpose’ recognition, to borrow from David de Groot, ⁹⁴ is that all the other rights enjoyed by family members around the EU might still regrettably lie outside the reach of the same-sex spouses who successfully invoked EU law to move to a homophobic Member State. Lacking these rights, which could include inheritance, taking up the lease, survivor pension, hospital visits, or raising children together, ⁹⁵ could still pose huge problems in such Member States, and will require further litigation.

David de Groot is thus justified in doubting whether the case of Coman will have any immediate implications at all for the actual recognition of the marriage in question by the Romanian authorities. ⁹⁶ The meaning acquired by Article 8 ECHR in Oliari, ⁹⁷ however, is a powerful helping hand in the context of the unconditional mutual recognition argument, which the ECJ made in Coman. Acting otherwise could, essentially, amount to allowing for the limitations of the free movement rights of some families based on a national rule, breaching of Article 8 ECHR. This would deviate entirely from the logic of the Union as a constitutional system respecting human rights and violate the Charter of Fundamental Rights, with its gender-neutral framing of the right in Article 9. Incidentally, Article 9 CFR itself inspired a change of heart by the ECtHR, showcasing a spectacular example of cross-pollination between the two supranational legal systems in Europe. ⁹⁸ The Charter, once it entered into force, was taken to signify a new consensus among the European states on the important issue of same-sex relationships, thus mandating the evolution of Strasbourg case law. ⁹⁹

Important in this respect is the fact that ECHR and Charter rights, as deployed, would squarely fit within the free-movement internal market paradigm of EU integration. Such rights could thus unquestionably expect protection even where the approach to rights as such in EU law is chiefly instrumental, as the Court has explained in Opinion 2/13. ¹⁰⁰ Whether the Court is to be blamed for not doing more in Coman to avoid the hint of ‘single purpose’ is an open question. ¹⁰¹ Family, after all, is famously outside the scope of EU law as it were – Poland even appended a declaration to this effect to the Treaties. When treading in such contentious fields, particular caution is required. ¹⁰² It is thus possible to agree with Alina Tryfonidou, that ‘in EU Member States, full marriage equality is unlikely to be imposed from above’. ¹⁰³

C. Question no. 3: The acceptability of the free movement paradigm for non-discrimination

Single-purpose recognition is not the whole story. The case of Coman reinforces a very particular view of EU law. The free-movement paradigm has little to offer to those who would expect their dignity and family life protected without pleasing the ‘apolitical’ rationale of the internal market: ¹⁰⁴ those who stay at home, ¹⁰⁵ those who would be ‘illegal’ in a host Member State – for example, Miss Dano, in love with another Roma lady ¹⁰⁶ – and many others. The Coman victory is thus cum grano salis: it is too self-consciously aware of its federal limitations in terms of competence. ¹⁰⁷ The Court was too afraid to tread on the long Polish tradition of discriminatory family ideals and Latvia’s arguments of ‘constitutional identity’, implying that ‘identity’ consists in ensuring that, in a Union where sex and sexual-orientation discrimination are illegal, ¹⁰⁸ and tolerance is one of the values of Article 2 TEU, these goals are never reached, and gay families remain persecuted. This is, to agree with Massimo Fichera, one of the core problems with free movement law as such. ‘It seems to be built on what is considered “normal,” so that deviations from normalcy are not contemplated.’ ¹⁰⁹ At the same time, the justification behind the choice of the key paradigm of ‘normal’ to be protected are blurry and not always clear, to say the least. This has the effect of punishing those persons and relationships that do not fall within the proclaimed ‘good citizenship’ ideal, ¹¹⁰ be it a same-sex family, a person with a disability, ¹¹¹ or a woman absent from work during pregnancy. ¹¹² Coman represents enormous progress compared with Grant v. SWT just 20 years ago, warranting one of the authors of this note to correct his earlier statement calling the Grant Court a ‘homophobic bench’. ¹¹³ It is still far-removed from the basic Karstean dignity-oriented approach ¹¹⁴ demonstrated by other jurisdictions around the world. It is thus not marriage equality, it is the boosting of the internal market ideology, rightly described by Weiler as standing ‘naked, without a mantle of ideals’, ¹¹⁵ that the case of Coman has advanced.

Consequently, the gay community faces a situation where, though the dignity of fundamental human bonds is unquestionably recognized, loving each other is only possible in the Union today if one avails themselves of at least some protections of the law, particularly when the context is ‘cross-border’ and market-friendly. ‘Bad citizens’ of the EU, unlike the ‘good citizens’, fail to understand and live by the ideal of the internal market and cross-border movement, and as such do not enjoy the most basic dignity under EU law. Family life for gay EU citizens is still light years away from being fully recognized and solidified as a true enforceable right at the level of EU law. It is not mentioned in Part II TFEU and thus, apparently, is not part of ‘other rights in the Treaties’, which Article 20 TFEU refers to, pace Article 9 CFR: what is not expressly mentioned in the open list of EU citizens’ rights thus seem to fall short of emerging as a true right at all, no matter what the Charter has to say on the issue. ¹¹⁶

D. Question no. 4: The issues of coherence across different instruments of secondary EU law

Coman has implications for the meaning of ‘spouse’ in the context of other secondary EU law, especially the Family Reunification Directive. ¹¹⁷ Although today’s practice in some Member States, as Titshaw reports, ¹¹⁸ treats same-sex couples under different directives differently, such practice unquestionably falls short of the idea of uniform application of EU law. This implies that the semantic unity of the key notions it operates with, as well the compliance with ECHR law, as non-discrimination, family and private life in the ECHR, are not citizenship-specific and, therefore, bind the states-parties equally in their regulation of the family life of own and EU citizens, as well as foreigners.

E. Question no. 5: Why ‘genuine residence’?

That ‘genuine residence’ is required is of course a problem, since the direct consequence of someone’s residence being deemed ‘genuine’ is the ability to go on effectively enjoying family life and dignity. In the context where the meaning of ‘residence’ in the law does not overlap neatly with physical presence, a ‘genuine residence’ under the law of several Member States is nothing else but the possession of a legally-acquired residence title. It seems to be highly problematic to demand more, especially where someone’s family life is dependent on this. To put it differently, this allows for ‘abuse of law’. ¹¹⁹ The Commission, as we have discussed above, does not do enough to promote gay rights and non-discrimination against same-sex families. At the same time, for some couples, establishing residence elsewhere is the only way to gain dignity and basic legal recognition for one’s same-sex family under the law of a Member State. For Coman to include a criterion judging how ‘genuine’ someone’s residence is amounts to one thing: supplying homophobic states with an additional argument to avoid complying with the law, so that they may continue discriminating against sexual minorities. Such an approach invites a whole range of problematic questions and seems to be anything but sustainable.

F. Question no. 6: The utility of private international law approaches

Speaking of a ‘marriage lawfully concluded in the host Member State’, Coman does not answer crucial questions about the very possibility of the celebration of a same-sex marriage in contemporary EU law. The ECJ has now officially endorsed setting aside private law rules in Coman situations, ¹²⁰ but they could offer an impenetrable obstacle to the establishment of a marriage in law. This is another issue in line to be tackled in order to make Coman fully effective. This is due to the fact that precisely because of discrimination in the law of the Member State of nationality, making same-sex marriages impossible, the celebration of such a marriage in a different Member State could also be hindered, as Ulli Jessurun d’Oliveira has wonderfully explained. ¹²¹ For example, in cases where a same-sex marriage is being celebrated, Belgian law allows departure from the requirement of compliance with the national law of the state of nationality of the partners prohibiting same-sex marriage, if the law of the state of nationality or habitual residence of one of the partners allows for same-sex marriage. ¹²² Not all the Member States apply such a favor matrimonii rule, however, which makes it in practice impossible to celebrate a same-sex marriage between the partners coming from homophobic Member States. This effectively downgrades the level of recognition of same-sex unions in such cases to same-sex partnerships. The requirement of a marriage ‘lawfully concluded in the host Member State’, could thus be a very difficult one and, considering states not applying favor matrimonii laws, potentially undermines the whole point of the Directive. This extends discrimination, via the medium of private law, from the homophobic Member States to the rest of the EU, thus promoting the violations of ECHR law through very unusual means. In casu, Romanian law was of no relevance, since the law of the State of New York was applicable, but in any other factual situation (e.g. an applicant marrying in a different Member State or one coming from the states hostile to same-sex marriage), concluding a marriage would be much more difficult. It is clear, in this context – again agreeing with Jessurun d’Oliveira and with AG Wathelet ¹²³ – that although Coman revolved around a marriage celebrated in the host Member State, this should not per se be a requirement for benefiting from free movement of persons law in the EU. Any state, including third counties, could definitely produce the same legal effects, once the marriage is recognized in the EU. Here, again, the language adopted by the Court is dangerously narrow and could lead to misinterpretation, while marrying in the State of New York should have been sufficient, under previous case law, ¹²⁴ to claim a derivative-free movement right for Mr Hamilton, a US citizen, to enter and reside in Romania with his spouse.

G. Question no. 7: The dangers of ‘strengthening family life’ formulae

There is a real problem with the ‘created or strengthened’ family life language the Court employs. ¹²⁵ Families go through phases. In the film Shortbus, the main character is a married woman who discovers she craves a bisexual threesome relationship, and whose first orgasm coincides with the great blackout of New York City. One does not need to see this movie to realize that family life can linger on the backburner, freeze or, sometimes, be reborn. A cold family on the ruins of a love that died is still a family, however, as much as an open relationship involving more than two. Likewise, a long-distance union of hearts, where partners never see each other but could nevertheless be dearly present in each other’s lives, are families all the same. ‘Strengthening’ language opens a Pandora’s box of a potentially disastrous ECJ intervention into what should be the partners’ realm only. Free movement should apply to families getting ready to divorce, to those who hate each other and to those families in which one of the partners is preparing to die. What is going on between the partners is not and cannot possibly be the ECJ’s business. Moreover, this has been the classic approach in the case law all along, recalling the facts of Singh, in which a UK/third-national couple moved back to the UK to divorce and was exempted from immigration controls via the application of EU law. Considering the astonishing variety of human bonds and interactions falling under the umbrella term of ‘family’, the last thing we want is the Court unable to utter the word ‘sex’ to tell us what ‘strengthening’ is. ¹²⁶ Consider how the Court has reduced human agency in other fields, such as ‘integration’ into the society of the host state, ¹²⁷ ‘work’ ¹²⁸ or ‘sufficient resources’, ¹²⁹ bringing disaster to a great number of families and giving EU free-movement law an awkward illiberal turn. This hits both workers and other citizens hard, ¹³⁰ and makes the Court a true ‘actor of injustice’ ¹³¹ in the eyes of some. The sacrifices made in achieving levels of protection for the ordinary men and women all around the EU teach a simple lesson. Whatever the reasons for the Court to take steps back – and either they fail to convince the addressees, thereby ensuring that the sacrifices of rights made are probably not entirely in vain ¹³² – it is better for the Court to stay out of our lives and out of our beds. Coman regrettably fails this ‘no harm done’ test by venturing into the ‘strengthening’ enigmas not mandated by either secondary or primary law.

H. Question no. 8: Future frontiers – non-binary unions and the future of public policy in this field

This brings us, lastly, to a most fundamental question concerning other types of marriage. What about ménages à trois? Member States have made their policy choices – all of them favour one particular type of a binary union: polygamy is outlawed and second and further spouses are expressly not covered by the Family Reunification Directive. ¹³³ Observing the networks of wives, friendships and love-triangles on the ground around the EU the question arises how far this kind of favouring of particular configurations of relationships actually corresponds to reality and can be justified? ¹³⁴ This is not an empty question. Once recognizing the ‘dignity’ of a same-sex marriage is a frontier passed, what arguments, if any, could there be in stock to fight against a three-partner marriage (whatever the sexes of the lovers)? Public policy, of course, will not do the trick. Indeed, it is quite unclear who, besides state-sponsored hypocrisy, is harmed by moving beyond heteronormative binary relationships. Instead, we confine other types of relationships to the fringes of society: secret, unrecognized, frowned upon, for no clear reason. It is thus impossible to agree with positions in scholarly literature, stating that, to quote Bell and Bačić Selanec, ‘on a human rights level, a fundamental distinction must be drawn between same-sex marriage and polygamous marriage’, ¹³⁵ citing legal instruments and case law in support of this statement, the logic of which was used to bash same-sex partners still 10 years ago. Such statements are entirely empty and counterproductive, if no arguments are given in their support besides ‘while loving your same-sex partner – something that was untenable and immoral before – is ok, don’t you dare love two people!’ What we are witnessing is the culture of justification in action: ¹³⁶ the beating heart of modern constitutionalism. Once good arguments are not available to defend the limiting involvement of the authority, the rule should go. It is thus very difficult to disagree with Nora Markard’s excellent analysis: ‘in the cases of both polygamy and incest, as with same-sex marriage, moral disapproval – the “yuck factor” – has to yield in the face of autonomy and privacy; only rational reasons can sustain a prohibition of marriage’. ¹³⁷ The EU has played a crucial role in the process of bringing down absurd rules continent-wide. This process, should one believe Gareth Davies, often amounted to the humiliation of states by confronting them with the utterly, inexplicably stupid choices they make. ¹³⁸ Coman is a great example of that. Yet the pressure will obviously be mounting to explain to a married woman why she cannot also marry her long-term female lover. The absurdity of pretending that long-standing multi-partner relationships are not a day-to-day practice is self-evident, yet the law is frequently not on the social reality side, in precisely the same way as the Romanian Civil Code, which will not be applied in Coman.

There is a curious fact one has to raise in the context of polygamy. The EU is a jurisdiction where registered partnerships and marriages de jure tend to be worlds apart, and where some marriages are not universally recognized as marriages. Consequentially, following the outcome of Coman, EU law obviously makes polygamy legally possible throughout the Member States. Having married Thijs in Brussels, Leszek can return to native Poland, where this marriage will not be recognized and thus form no legal impediment for him to marry Volha in Natolin. As underlined by David de Groot, this is a most ironic outcome of trying to uphold one crucial rule about marriage throughout the EU: total intolerance of polygamy. ¹³⁹ Be it as it may, this is a great development, as long as Leszek is happy (just as are Thijs and Volha, should they be informed about it).

6. Federal rainbow dream: Comparative outlook

AG Wathelet mentions a broad comparative paradigm for Coman, specifying that jurisdictions as diverse as Canada, New Zealand, South Africa, Argentina, USA and Taiwan have all opened the gate for same-sex marriages. ¹⁴⁰ In the EU itself, apart from 13 Member States which have legalized homosexual marriage, nine other Member States have a registered partnership open to couples of the same sex (Slovenia, Czechia, Hungary, Austria, Croatia, Estonia, Cyprus, Greece and Italy). Emerging global consensus on the issue is absolutely clear. ¹⁴¹ Hence, the days when constitutional lawyers would say that only a small number of EU countries recognizes same-sex unions are entirely passé. This is even more the case given that not offering a registered partnership (at least) in the national law is now a violation of Article 8 of the ECHR. ¹⁴² There is a clear consensus that cannot be overlooked by the Court of Justice regarding a nascent recognition of same-sex unions in the absolute majority of EU Member States these days. Yet American jurisprudence and the liberalization from the European Court of Human Rights remain undoubtedly the major inspirations for advancing the federal track on litigating same-sex marriages in Coman via EU law.

A somewhat schizophrenic judgement of the US Supreme Court came in the case of Masterpiece Cake Shop, which preceded the judgement in Coman just by one day. The case regarded the religious sensibilities of a Colorado baker, who refused to deliver a cake for a gay wedding. Another judgment of the US Supreme court, Obergefell v. Hodges (2015), ¹⁴³ stands as a crucial example of a federal opportunity for gays and lesbians — a legal track that has been explored by lawyers with regard to Coman. Although Obergefell was widely streamlined in the media as the judgement about same-sex marriages, de jure the decision is more about recognition of rights derived from marriage than status, which ironically made the recognition of status all over the American states only a question of time. The case was launched after a same-sex couple, James Obergefell and John Arthur, married in Maryland. Their state of residence – Ohio – did not recognize their marriage licence, and they went to court. John Arthur was terminally ill and suffering from amyotrophic lateral sclerosis. For this reason, they wanted the other partner, James Obergefell, to be identified as his surviving spouse on his death certificate, based on their marriage in Maryland. Through this paradigm of rights based on free movement between the states, the Supreme Court established that a there is a fundamental right to marry guaranteed to same-sex couples by the Due Process clause and the Equal Protection clause of the Fourteenth Amendment to the United States constitution.

The European Court of Human Rights quickly followed with the Oliari and Others v. Italy (2015) judgement, ¹⁴⁴ where the Court established that Italy should offer some form of registered partnership or marriage to gay couples. How far-reaching the distinction between the two can be is limited by ECHR law and expressly includes family reunification, following the judgment in Pajić. ¹⁴⁵ It is remarkable that in Oliari, the ECtHR refers to comparative jurisprudence, giving the example of the decision in the US Supreme Court that preceded Strasbourg by just a couple of weeks. ¹⁴⁶ This Strasbourg judgment also captures the growing consensus in the Member States of the Council of Europe, noting that 11 countries of the Council of Europe recognized same-sex marriages, while 18 offered recognition of various forms of same-sex partnerships at the moment of the decision. ¹⁴⁷ Of course in Coman, the ECJ rounded this important circle of federal thinking, adding to a tacit-recognition track for same sex marriages visible in the jurisprudence of the US Supreme Court and the European Court of Human Rights. Coman allows asking uncomfortable questions about the state of the rule of law in Romania and the ability of that country to offer effective protection of rights to its citizens, thus fully benefiting from the membership of the Council of Europe and the European Union. ¹⁴⁸

Once again, following Oliari and Pajić it was beyond any doubt that Romania was in breach of ECHR law, since it did not create a status as demanded by Oliari and did not offer a family-reunification track, as demanded by Pajić. Worse still, considering the interaction between the EU Charter of Fundamental Rights and ECHR, no doubt could possibly arise that the Directive 2004/ 38 had not been correctly implemented in Romania. Besides a breach of EU law, at issue is thus also a breach of ECHR law, to say nothing of the ECtHR’s systemic enforcement issue. ¹⁴⁹ Coman stands as a reminder that the level of development of the basic legal capacities in the Member States differ drastically from one state to another.

7. To conclude: Sexual market citizenship is not sufficient

Although the judgment is itself very narrowly construed, gradual acceptance of same-sex marriage in most heteronormative countries is bound to take place. This is demonstrated by numerous, recent examples of developments in countries across the globe. Increasing, legal recognition of same-sex marriages entered into in a foreign country, for whatever purpose, demonstrates the hypocrisy underlying the lack of acceptance in other spheres. This is bound to gradually bring about changes of a radical nature. ¹⁵⁰ In other words, and in agreement with Massmo Fichera, ‘a legal system may sometimes be bound to recognize social facts, and transnational law may enhance this phenomenon’. ¹⁵¹ Such recognition, should it occur in every Member State of the Union, is bound to part ways with the internal market logic that could very well provide it with the initial boost. Indeed, for the eight challenges fleshed out in Coman, a step further, outside of the realm of the internal market thinking about equality, will be absolutely necessary. Acknowledging this necessity – as well as the fact that market citizenship is insufficient to resolve the outstanding dilemmas – is necessary to see the positive momentum that the market logic of the EU could generate.

EU citizenship is not only a unique area to ‘overcome’ nationality, often imagined in terms of the dominant ethnicity of Member States. ‘EU sexual citizenship’ ¹⁵² also offers an arena of activism for contesting sexual identities and inequalities rooted in those national citizenships, trans-nationalizing discourse on rights and gay emancipation – especially in Central and Eastern Europe – as a matter of EU law. European, in this sense, becomes a language of rights and entitlements, which can be turned, inter alia, against their own countries of nationality, albeit through the lens of free-movement and the internal market. Besides the tedious and morally-questionable mantra of ‘market citizenship’, ¹⁵³ now shifting to ‘market sexual citizenship’, EU federalization fosters the social imagination of its citizens and social movements who, in turn, utilize EU equality standards as a strategy for a veritable humiliation of their non-compliant Member States. ¹⁵⁴ European becomes the language of rights and entitlements. EU sexual citizenship becomes a realm to discipline embarrassment in the Union. All the many an imperfection aside, Coman is thus definitely a step in the right direction.