The case involves a Romanian male national who had married a man from the United States in Brussels in 2010.
European Court of Justice Advocate General Melchior Wathelet said the key legal issue in the case of Romanian Adrian Coman and his American husband, Claibourn Robert Hamilton, was "not that of legalization of marriage between persons of the same sex but that of freedom of movement of a Union citizen". The case was eventually referred to the ECJ, which determined that "spouse" is gender-neutral and includes same-sex partners.
It is one of six European Union countries with no legal recognition of same-sex relationships, along with Bulgaria, Latvia, Lithuania, Poland, and Slovakia.
"While member states are free to provide for marriage between persons of the same sex in their domestic legal system or not, they must fulfil their obligations under the freedom of movement of European Union citizens". The couple met in NY in 2002 and lived together there for four years, but Hamilton remained in NY initially when Coman moved to Belgium for work.
Hearing a plea of unconstitutionality raised in the context of that dispute, the Curtea Constituţională (Constitutional Court, Romania) asked the European Court of Justice whether Mr Hamilton, as the spouse of an EU citizen having exercised his freedom of movement, must be granted a right of permanent residence in Romania.
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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A senior adviser to the European Union's top court has backed a Romanian gay man's right to have his USA husband live with him in Romania.
The Alliance of Romanian Families and the Coalition for Family, two conservative Christian groups which oppose same-sex marriage didn't immediately respond to requests asking for comment on the development.
It was his opinion that "in view of the general evolution of the societies of the member states of the EU in the last decade in the area of authorisation of same-sex marriage" it was no longer appropriate to follow the case law definition of marriage as "a union between two persons of the opposite sex".
The senior adviser also stated that "in the area of family reunification, the objective of protecting the traditional family can not justify discrimination on grounds of sexual orientation".
Opinions given by ECJ advocate generals are non-binding on the court's judges but are normally followed by the full court.
Same-sex marriages or civil partnerships are recognized or have some protections in 22 of the 28 countries.