The EU cannot impose the legalisation of same-sex marriage on Romania or any other country

Politics - August 30, 2023

The European Court of Human Rights (ECHR) recently ruled that Romania has violated Article 8 of the Convention – which provides for the right to “respect for private and family life” – in the case of same-sex couples. Considered “historic” by the ACCCEPT Association, an NGO promoting LGBT rights, the ECHR decision in fact stipulates the recognition obtained two years ago by a Romanian-American gay couple at the Court of Justice of the EU (CJEU) of a marriage already concluded in another state. 

Romania, Hungary and Poland criticised by Brussels for not allowing same-sex marriages

Romania – as well as Hungary and Poland – has been and is being criticised by Brussels for its laws that do not allow same-sex marriages (and in the case of Hungary, even for banning so-called homosexual propaganda), with calls to “respect the common values of the Union”. However, beyond reprimands and recommendations, the EU cannot impose the legalisation of same-sex marriages on Romania or any other country. The definition of the family in the European Union is a matter for national legislation alone, as this is one of the areas – such as health or education – which, under the principle of subsidiarity, have been left to the exclusive regulatory competence of the Member States.

What did the ECHR judges decide?

“The Court has already concluded that there is a positive obligation under Article 8 of the Convention to ensure the recognition and legal protection of same-sex couples and has found a violation of this obligation in Oliari and Others and Fedotova and Others (…) This positive obligation should not depend on national circumstances. The obligation to ensure that the applicants had legal recognition and protection of their respective families is generally applicable under the Convention: the applicants – who constituted de facto same-sex families in Romania – had the same right to legal recognition and protection under Article 8,” the ECHR said in an official statement issued after the adoption of the judgment.

The judgment which the ECHR cites as a precedent was adopted in January 2023 in the case of Fedotova v. Russia, which concerned Russia’s refusal to recognise and protect same-sex families. Activists and human rights lawyers argued at the time that the “landmark decision” would have significant consequences for couples in Romania.

Returning to this, the ECHR judgment in the case against Romania states that everyone has “the right to respect for his private and family life”, his home and his correspondence, and that “the public authorities may interfere with the exercise of this right only to the extent that such interference is provided for by law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others”.

Also, according to the judges, the ECHR “finding a violation of the Convention constitutes in itself sufficient just satisfaction for any non-material damage suffered by the applicants”. The judgment also refers to the fact that the Bucharest government’s arguments are invalid: 

“The Court finds that none of the reasons of public interest put forward by the Government outweigh the applicants’ interest in having their respective relationships properly recognised and protected by law. The Court concludes that the defendant State exceeded its margin of appreciation and failed to comply with its positive obligation to ensure the applicants’ right to respect for their private and family life”.

Reacting after the adoption of the Decision, the ACCEPT Association said that it was a “historic decision” and that “Romania must recognise and protect same-sex families”.  According to the NGO quoted, “the ECHR clearly underlines that these families urgently need a form of recognition that gives these families equal rights and creates a legal framework that protects the living together of these couples”.

 “On the occasion of this decision, the ACCEPT Association asks once again the Romanian Government and Parliament to do its duty towards all its citizens and to treat all families in our country with dignity and respect”, the Association added.

How did the fight of gay couples against Romania start in the EU courts?

The recent ECHR case involves 42 applicants (13 lesbian women couples and 8 gay men couples). In 2019, the family of Florin Buhuceanu and Victor Ciobotaru sued the Romanian state for not recognizing their family relationship. Another 20 same-sex couples have joined the ECHR lawsuit. The 42 people, supported by the ACCEPT Association, took the Romanian state to the ECHR and asked Romania to recognise same-sex families and to prohibit discrimination against them. All this is provided for in Articles 8 and 14 of the European Convention on Human Rights. But the fight began a year earlier, in 2018, with the case of a Romanian-American gay couple – Adrian Coman, a Romanian citizen, and Robert Clabourn Hamilton, a US citizen, who complained to the Court of Justice of the European Union in Luxembourg because they could not obtain the necessary documents for the two to live and work together in Romania as spouses. And the CJEU ruled to recognise the couple’s marriage, which was concluded in another state.

Orthodox Church “explains” Romania’s position

The spokesman of the Romanian Orthodox Church (BOR), Vasile Bănescu, reacted on the day of the adoption of the ECHR decision to the recommendation that Romania should “adopt a legal form of recognition of same-sex families”. 

 “Civil partnership legalises cohabitation” – replied the BOR representative.

He pointed out that the definition of family is very clear in the Constitution.

“The legal framework that optimally protects the “upbringing, education and training of children” is only the natural family (Article 48, paragraph 1 of the Romanian Constitution). From a moral point of view, civil partnership is a surrogate of marriage and a destructive element of the spiritual and moral order in society. The legalisation of civil partnerships has become everywhere it has been accepted the first step towards the legalisation of ‘same-sex marriage’, it is only the means by which this ‘marriage’ can be achieved. 

The subject of redefining the family in the Constitution was put to an end in 2018 – at least for the time being – with the Referendum organised during the PSD government and Prime Minister Viorica Dăncilă. Even though the majority of those who took part said “Yes” to amending Article 48 of the Constitution on the definition of marriage, during the two-day ballot – just over 20% of those eligible to vote felt it necessary to have their say on the subject. In other words, the referendum was ultimately invalidated.

European Parliament urged Commission to take action against stubborn countries

A resolution that left the European Parliament’s Petitions Committee in 2021 stated that LGBTIQ+ families and same-sex couples should have the same freedoms of movement and family reunification rights as other families in a community, and that the European Commission should take action against Romania, Hungary and Poland for violating EU values in this regard.

The recommendation paper argues that the EU should remove all obstacles faced by LGBTIQ+ people when exercising their fundamental rights, stressing that same-sex partnerships and marriages should be recognised throughout the EU.

In other words, the EP, through this document, invites” all EU member states to consider recognising same-sex marriages, as Free Europe commentators argued at the time. According to them, the European document emphasises the right to free movement of “rainbow families” within the EU and the right to family reunification, which must be equal to that of traditional families. In essence, it is about removing the obstacles that LGBTIQ+ people face in the EU in exercising their rights.

They also argue that the document requires states to recognise partnerships or marriages already formed and registered in a member state. They should be recognised in all Member States uniformly and same-sex spouses and partners should be treated in the same way as opposite-sex spouses and partners, the EP resolution says.

According to the results of the roll-call vote, of the 387 “yes” votes, six were cast by Romanian MEPs. All six Romanians who voted in favour of the resolution are USR PLUS MEPs from the Renew Europe group. 

So far, only Hungary has been challenged by the European Commission at the CJEU over the law adopted in June 2021, which bans the “representation or promotion” of homosexuality and gender reassignment to minors. In July 2021, the European Commission launched infringement proceedings against Hungary in relation to this law.

About a third of member states do not recognise gay marriage

Slovenia is the first ex-communist country to ban civil unions or same-sex marriages, while most of its neighbours have approved them. It joins 17 other countries on the continent that have already legalised same-sex marriage. The first country to legalise gay marriage was the Netherlands in 2001, followed by Belgium in 2003. Belgium, the Netherlands and Luxembourg are also the first and most progressive in many areas, starting with the legalisation of euthanasia and the tolerant Dutch drug and prostitution laws.