In a landmark case that could lead to the EU-wide imposition of same-sex marriage, ADF International submitted its observations as a third party intervener to the Court of Justice of the European Union. In the case of Coman and others, the Court in Luxembourg must decide whether the terms ‘spouse’ and ‘family member’ in the EU free movement laws also apply to a same-sex partner. Legal experts now fear that the decision may undermine the principle of subsidiarity. To date, the EU has recognized marital law as a national competence of its Member States.
“In times where the EU is drifting apart, the Court would further the division of the Union if it decides to redefine marriage and family for all Member States. The Court should not sacrifice respect for national competency and cultural diversity by telling Member States that their national legal order does not matter. 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. A Member State should remain free to affirm in their laws that a mother and father are both essential in a child’s life,” said Sophia Kuby, Director of EU Advocacy for ADF International, based in Brussels.
Sophia Kuby, Director of EU Advocacy for ADF International, based in Brussels.
Strategic litigation at the Court of Justice
The involvement of the Court of Justice is only the latest of repeated attempts to legalize same-sex marriage throughout Europe, even against the opposition of many Member States – and the three million Romanian citizens who recently signed an initiative to protect marriage as the union of one man and one woman. Both, Romanian born Adrian Coman and his partner, US citizen Robert Claibourn Hamilton, are LGBT activists. Coman works for the Arcus foundation and funds LGBT cases around the world with a multi-million dollar budget.
In 2010, the couple obtained a “marriage certificate.” When Romania, in line with its national law, refused to consider the pair to be a married couple, 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.
Family is national competence
“The core notions of family law – ‘spouses,’ ‘family member,’ and ‘marriage’ – fall within the competence of EU Member States. This is well supported by the language of core EU directives on the matter, and consolidated by the Court of Justice jurisprudence. If this Court puts forward a definition of ‘spouses’ as including same-sex partners, national competence on the issue would be eradicated,” explained Adina Portaru, Legal Counsel for ADF International and leading lawyer on the third party intervention.
“Forcing a Member State to amend its national law to legally recognize same-sex relationships means deliberately ignoring a national democratic process. In Romania, three million people have recently signed an initiative to strengthen marriage between one man and one woman in the constitution. By defining the term ‘spouse,’ the Court of Justice runs the risk of undermining the law in half of the EU Member States and of creating legal chaos as a result, because hundreds of national laws depend on this definition.”
Source: ADF International
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