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 these 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 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 in no way 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 (and it should) 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 Council of Europe and 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. Moreover, the CCR left untouched the provision that criminalized “homosexual proselytism” (i.e. the provision criminalizing the acts of “inciting or encouraging a person to practice” homosexuality enshrined in Article 200 (5) of the Penal Code that time). This meant that LGBTQ+ organizations could not openly declare their mission until 2001 when Article 200 of the Penal Code was repealed at the pressure of EU accession.

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 (more on this initiative here). 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 does not suppress any fundamental rights or freedoms and it gave 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 – such as the rights to non-discrimination, equality and privacy guaranteed by Articles 4 (2), 16 (1) and 26 of the Constitution – should have been analyzed.

In Decision 580, to show that the right to marriage would not be suppressed if marriage would be defined in the constitutional text as the union between a man and a woman, the Court started by making a literal analysis of the word ‘to suppress’. It explained that according to the Explanatory Dictionary of Romanian Language “the notion «to suppress» means «to make something disappear, to remove, to eliminate, to cancel»”. It then showed that, quite obviously, defining marriage as between a man and a woman did not lead to the removal, elimination or cancellation of the institution of marriage. Then, the Court continued its reasoning with an originalist argument. The Court concluded that Article 48 also mentions children along marriage (Article 48 (3) states that “[c]hildren born out of wedlock are equal before the law with those born in wedlock”) because the drafters of the Constitution wanted to emphasize that marriage had a “biological component” and was “a union between a man and a woman, since only through such a union can children be born” (para. 42). This statement not only that seems to leave out from the definition of who can get married infertile couples, couples who do not want to have children, couples who adopted or are willing to adopt children or used or want to use assisted reproduction technologies to have children (same-sex couples included), but it is also a sign of the animosity of the CCR towards homosexual couples.

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. In the Coman case, it was the first time when the CCR referred to the CJEU for a preliminary ruling. Such referral gave the CCR the opportunity to absolve itself of responsibility and signal once again to the Romanian society that LGBTQ+ rights are nothing else but an imposition from the EU.

A shorter version of this blog post appeared initially on Oxford Human Rights Hub.