'Spouse' includes same-sex partners, European Union court adviser says

Clai Hamilton and Adrian Coman

The Luxembourg-based court but not always follows the legal opinions of its advocates general.

The opinion was released as the ECJ hears the case of Romanian Adrian Coman, who tied the knot with his American partner, Claibourn Robert Hamilton, in Belgium in 2010.

Under the E.U.'s 2004 freedom of movement principle, member states are required to grant residency to citizens' spouses from non-E.U. countries.

"The term "spouse" includes, in the light of the freedom of residence of citizens of the European Union and their family members, spouses of the same sex", Wathelet said. But the couple now resides in Romania, which has yet to legalize same-sex marriage. Romania's constitutional court then referred the case to the European court (ECJ).

One of the EU's most senior legal advisers has said that same-sex partners of European Union citizens enjoy the same free movement rights as partners of a different gender.

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The judge added that "the objective of protecting the traditional family can not justify discrimination on grounds of sexual orientation" and that "the concept of "spouse" within the meaning of the directive also includes spouses of the same sex". It will also ensure the term "spouse" is always seen as gender neutral by law.

He noted that "the directive makes no reference to member state law in order to determine the nature of "spouse", even though that concept must be interpreted autonomously and uniformly throughout the EU".

The ECJ's advocate general, Melchior Wathelet, said in an official legal opinion there had been "evolution" in the societies of EU countries, and the idea that "the term marriage means a union between two persons of the opposite sex can no longer be followed". It is one of six European Union member states, along with Poland, Slovakia, Bulgaria, Lithuania and Latvia, that offer no legal recognition for same-sex relationships. Moreover, the ECtHR also considered that, in the area of family reunification, the objective of protecting the traditional family can not justify discrimination on grounds of sexual orientation. They would have been compelled to do so had Mr Coman's partner been of the opposite sex.

"This is fantastic news and a landmark opinion for rainbow families", Sophie in 't Veld, the Dutch member of the European Parliament, told The Guardian. The EU has insisted that any future agreements on citizens' rights and access to the single market must continue to be policed by the ECJ.

The ECJ has had a relatively benign history with the United Kingdom - unlike the more contentious European court of human rights in Strasbourg - but nonetheless became a symbol of compromised sovereignty during the Brexit referendum.

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