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September 25, 2022

CCR postpones ruling on same-sex marriage

The Constitutional Court of Romania on Wednesday postponed for 20 September a ruling on same-sex marriage.

An exception to the Civil Code on the recognition of same-sex marriage was introduced in a litigation by Relu Adrian Coman and Robert Clabourn Hamilton, alongside the human rights association ACCEPT. It concerns two articles of the Code: one stipulating that same-sex marriages which Romanian or foreign citizens entered into abroad are not recognised in Romania, and another one reaffirming the freedom of movement in Romania of EU citizens.

Coman, a Romanian citizen, and Hamilton, an American citizen, were married in Belgium in 2010. Coman claims that he cannot benefit from the right of residence if his marriage is not recognised in Romania. He said he will abide by any decision of the Constitutional Court, but hopes it will rule based on the Constitution and on international human rights laws.

The complainants challenged Article 277, Paragraph 2 and 4, of the Civil Code, which refers to the fact that same-sex marriages which Romanian or foreign citizens entered into abroad are not recognised in Romania, and to the freedom of movement within the European Union.

“Interdiction or equating of forms of living together with marriage: “(2) Same sex marriage contracted abroad whether between Romanian citizens or by foreign citizens is not recognised in Romania. (…) (4) Legal provisions regarding free movement in the territory of Romania of citizens from the EU member states and the EEA, are valid,” reads Article 277.

Iustina Ionescu, the lawyer of the gay couple who is asking for their marriage to be recognised in Romania, argued at the Constitutional Court of Romania on Wednesday that the Civil Code’s interdiction in this case is discriminatory and harms the right to private and family life, being based on Romanian society’s prejudices, News.ro informs.

In support of her plea before CCR judges, the gay couple’s lawyer brought a series of arguments from the jurisprudence of the European Court of Human Rights (ECHR), arguments that in her opinion “detail the way in which the right to private and family life and the right not to be discriminated, rights included in Romania’s Constitution too, should be interpreted and implemented by all member states of the Council of Europe, and Romania’s Constitution is clear: it defends and protects the right to private and family life for all citizens, in a non-discriminatory manner.”

National Antidiscrimination Council (CNCD) President Csaba Asztalos talked in defence of the gay couple too, pointing out that Romanian legislation harms fundamental values such as human dignity.

CNCD President Csaba Asztalos argued in favour of the recognition of same-sex marriages in Romania. “We consider that the current legislation limits the right to human dignity, private and family life for members of a sexual minority because banning and not recognising same-sex marriages or civil partnerships places them outside society,” Csaba said.

CCR President Valer Dorneanu stated on Wednesday that the decision to postpone a ruling on a constitutionality challenge that refers to the recognition of same-sex marriages entered into abroad was taken because the judges want to carry out a more detailed analysis.

“In what concerns the constitutionality challenge concerning same-sex marriages entered into abroad, we postponed the ruling for September 20, the Court needing a deeper analysis,” Valer Dorneanu said.

He added that the CCR did not ask for supplementary data because even as it is it has received a lot of memos from NGOs. “We haven’t asked for supplementary data because they are sufficient. We have received a lot of memos from various associations, NGOs. We have sufficient data, but we felt the need for a deeper discussion of this very important aspect that can become a precedent and we have to be very careful with the ruling we make and the arguments we offer,” the CCR President stated.

The Government’s point of view was that the arguments brought by lawyers do not stand, bearing in mind the fact that a state that does not recognise such marriages represents “the expression of the diversity of legal systems” in relation to each society’s moral values.


CCR: Proposal on man and woman marriage meets constitutional requirement for civic initiative


Also on Wednesday, Constitutional Court found  that the civic legislative proposal to revise the Constitution so as to specifically state that the family is founded by marriage between a man and a woman meets the requirements for the initiative to follow its course.

The CCR panel unanimously passed the decision.

Court president Valer Dorneanu said the CCR did not pronounce on the timeliness of this amendment to the Constitution.

“It’s not the responsibility of the Constitutional Court to determine whether to allow marriage between spouses as stated in the Constitution, not even to redefine the notion of family, or define the other notions some are waiting for in connection with civil partnerships. CCR was strictly called to rule on the constitutionality of the revision proposal, and from this point of view we had to check the requirements set forth in Articles 150 and 152 of the Constitution,” Dorneanu said after the CCR sitting.

He underscored that this initiative does not suppress citizens’ rights.

“The right to marriage is currently not enshrined in the Constitution as a fundamental right. Relevant European legislation recommends a lax approach by the states, gives them a margin of sovereignty to pronounce whether they admit or not same-sex marriage. The concept of family life is not violated either, because it is much broader than the scope of marriage, it includes relationships with children, relatives, it defines their obligations and kinship relations. The court does not uphold a breach of this right from this point of view either. For all these reasons we found that since the constitutionality requirements laid down in Articles 150 and 152 are met, the proposal may further follow the standard course,” Dorneanu said, adding that other Constitution revisal proposals will have to follow the same track.

The Senate last month submitted to CCR a legislative proposal to check the observance of constitutional provisions for the revision of the Constitution.

On May 23, the Family Coalition tabled with the Senate a legislative proposal for the revision of the Constitution to spell out that family is based on marriage between a man and a woman, an initiative that was signed by 3 million citizens. After being registered with the Senate, it was introduced to the Standing Bureau on June 7 and forwarded to CCR to be checked for constitutional compliance.

The Family Coalition argues that their legislative proposal to amend the Constitution would explicitly protect families and parents’ rights

The suggested wording for Article 48 (1) in the Constitution is: ”The family is founded on the freely consented marriage between a man and a woman, their full equality, as well as the right and duty of the parents to ensure the upbringing, education and instruction of their children.” In its current wording, the article mentions freely consented marriage of the spouses.

The Initiative Committee is made up of 16 members: Nadia Tataru, Georgeta Stoian, Alina Tomi, Mariana-Liliana Georgescu, Tudor Sisu, Vlad Mirita, Mihaela Manuceanu, Sorin Lavric, Mihai Gheorghiu, Calin Diaconu, Pavel Chirila, Cornel Bratu, Liviu Axinte, Constantin Necula, Paul Negrut, Mircea Tudor.

The initiators suggest that the national constitutional revision referendum be held at the same time with this year’s general elections.

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