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Court of Justice to hold oral hearing in Coman case regarding cross-border recognition of same-sex marriages; National competence on the definition of marriage at stake, legal chaos looms

BRUSSELS – Does the Court of Justice of the European Union (CJEU) have competence to redefine marriage for all EU citizens? Today, on 21 November 2017, the EU’s highest court will hold an oral hearing in the case of Coman and Others in order to answer this question. The proceedings threaten the sovereignty of EU Members when it comes to family and marriage law. In the future, the EU may try to force States to recognize same-sex marriages established in any Member State, regardless of their own national legislation. Fourteen EU States define marriage as the union of one man and one woman. Seven of these States have enshrined this definition in their constitutions.

As an intervenor when this case was being considered by the Romanian Constitutional Court, ADF International has provided written observations in the case.

Redefine marriage and family

Many European countries recognize and protect marriage as a union between a man and a woman in their laws and constitutions, as is their right. Countries should remain free to affirm that a mother and father are both essential in a child’s life. In times when the EU is facing significant internal pressures, the Court of Justice would further the division of the Union if it decides to redefine marriage and family,said Adina Portaru, Legal Counsel for ADF International.

“If the EU Court can unilaterally change the definition of ‘spouse’ for all 28 Member States, there is no reason why it could not change other conditions for marriage in the future. For example, in Sweden there is an ongoing debate whether marriage should be opened for polygamous relationships. In a similar vein, an EU Member State could lower the required age to enter marriage. The Court’s ruling in the Coman case could make such national decisions compulsory for all EU Members, regardless of domestic legislation,” she added.

Deep division on the issue of marriage

In 2010, Romanian citizen Adrian Coman and his partner, US citizen Robert Claibourn Hamilton, obtained a marriage certificate in Belgium. When Romania, in line with its national law, refused to consider them a married couple in Romania, they sued the government. The couple argued that their right to freedom of movement within the EU had been violated. In 2016, the Romanian Constitutional Court referred questions of interpretation to the European Court of Justice. Now it is up to the European Court to decide how to answer these questions of interpretation.

Mr. Coman is the International Human Rights Programs Director of the Arcus Foundation, which funds LGBT cases around the world.

“The Union is deeply divided on the issue of marriage. If the EU’s highest court decides to contradict constitutional protections of marriage, it would lead to an unprecedented conflict of norms. It would create legal chaos and division, not more harmonization,” said Sophia Kuby, Director of EU Advocacy for ADF International.

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Sophia Kuby  Adina Helsinki 

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