Recognition of same-sex unions in Romania
|Part of the LGBT rights series|
Romania does not allow same-sex marriage or civil unions. In June 2018, the European Court of Justice ruled that under certain circumstances, same-sex married partners of European Union citizens are granted a right of residency in Romania under Directive 2004/38.
The Constitution of Romania does not define marriage directly, but Article 48 of the Constitution defines marriages between "spouses" as the foundation of the family. In 2018, the Constitutional Court of Romania ruled that the term "spouses" can only refer to a "man and woman", since this was the intention of the original constitutional lawmakers.
2004 election campaign
Former Romanian President Traian Băsescu said during his electoral campaign of late 2004 that he sees nothing wrong with same-sex marriage. The opposition Social Democratic Party later used his comments against him during the presidential campaign.
The primary LGBT rights defender in Romania, ACCEPT, has advocated for partnership rights for same-sex couples as well as for same-sex marriage in Romania. The organisation launched a campaign to legalise same-sex unions in Romania during the Bucharest GayFest 2006, which lasted from 30 May to 4 June, and was organised under the theme of "Same-sex marriage and civil unions in Romania". This event provoked widespread debate over the issue in the media. LGBT activists from ACCEPT organised a public debate and seminar on same-sex unions on 31 May, and called on the Government of Romania to provide marriage or at least registered partnership for same-sex couples, offering its assistance in forming a legislative proposal.
Romaniţa Iordache, the president of ACCEPT, stated on 31 May 2006 that "Article 200 [the last anti-gay law] has been abrogated, but we [the LGBT community] still do not have equal rights, even though the Constitution guarantees this." The spokesman of ACCEPT, Florin Buhuceanu, claimed that, "guaranteeing the equality of rights through the recognition of gay marriage... is just a step forward."
Romania's first religious same-sex marriage ceremony took place on 5 June 2006, following the Bucharest GayFest, when Florin Buhuceanu, the executive director of ACCEPT, married his Spanish partner of four years. The symbolic marriage, which has no legal status in Romania, was blessed by the Metropolitan Community Church in Bucharest, an international denomination which recognises same-sex unions and supports LGBT rights. The couple married officially later in 2006, in a civil marriage in Spain, where same-sex marriage is legal.
Statutory same-sex marriage ban
On 13 February 2008, the Senate of Romania voted in favour of an amendment to the Civil Code, proposed by Greater Romania Party, to explicitly define marriage as being only between a man and a woman. Previously, the law had only used the words "between spouses". The amendment was approved with 38 votes for, 10 votes against and 19 senators abstaining. It was not voted on in the Chamber of Deputies, and as new elections took place at the end of that year, the legislation died.
In May 2009, a new Civil Code was proposed by the Government. The Parliamentary Subcommittee responsible for the Civil Code decided to amend the definition of marriage, mentioning explicitly that it must be "between a man and a woman". Furthermore, an amendment was passed stating that the Romanian state would not recognise foreign same-sex marriages.
Article 259 (1) of the Civil Code states that marriage is "the freely consented union between one man and one woman". In addition, Article 277 (1) of the code emphasizes that "marriage shall be prohibited between persons of the same sex".
2018 European Court of Justice ruling
In 2018, the European Court of Justice (ECJ) ruled in favour of a Romanian man, Adrian Coman, who was seeking to have his marriage to his American husband Clai Hamilton recognised. They had married in 2010 in Belgium, where same-sex marriage has been legal since 2003. European Union law permits a non-EU spouse of an EU citizen to join their spouse in the member state where the European national resides. However, Romanian authorities refused to issue a residence permit to Hamilton, saying he could not be recognised as Coman's spouse because Romanian law prohibits same-sex marriages. The couple filed suit, arguing that the refusal was discrimination based on sexual orientation, which is banned in Romania.
The Constitutional Court heard the case in 2016 and later decided to consult the ECJ on the matter. The ECJ began examining the case in November 2017. In January 2018, Advocate General Melchior Wathelet advised the court to rule in favour of the couple:
Although member states are free to authorize marriage between persons of the same sex or not, they may not impede the freedom of residence of an E.U. citizen by refusing to grant his or her spouse of the same sex, a national of a non-E.U. country, a right of permanent residence in their territory.
Opinions of the Advocate General are not legally binding but are normally followed by the court.
The ECJ found in the couple's favour on 5 June 2018, ruling that EU member states may choose whether or not to allow same-sex marriage, but they cannot obstruct the freedom of residence of an EU citizen and their spouse. Furthermore, the court ruled that the term "spouse" is gender-neutral, and that it does not necessarily imply a person of the opposite sex. Coman welcomed the ruling, saying: "We can now look in the eyes of any public official in Romania and across the EU with certainty that our relationship is equally valuable and equally relevant for the purpose of free movement within the EU." The ruling was well received by White & Case, the law firm which represented the couple, as well as the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) and other human rights groups, but drew criticism from religious and conservative groups. The Romanian Orthodox Church called the ruling "anti-democratic".
The Court finds that the obligation for a Member State to recognise a marriage between persons of the same sex concluded in another Member State in accordance with the law of that state, for the sole purpose of granting a derived right of residence to a third-country national, does not undermine the institution of marriage in the first Member State, which is defined by national law and falls within the competence of the Member States. Such recognition does not require that Member State to provide, in its national law, for the institution of marriage between persons of the same sex. It is confined to the obligation to recognise such marriages, concluded in another Member State in accordance with the law of that state, for the sole purpose of enabling such persons to exercise the rights they enjoy under EU law.
On 18 July 2018, the Romanian Constitutional Court ruled that the state must grant residency rights to the same-sex partners of European Union citizens. This came after the aforementioned couple applied for recognition with the court following the ECJ ruling the previous month. As of March 2021[update], Romania has yet to implement the verdict by granting Coman's partner a residence permit.
Registered partnerships have not been legislated for in Romania, despite several failed attempts in the past.
On 23 February 2008, Péter Eckstein-Kovács, a parliamentarian from the Democratic Union of Hungarians in Romania, proposed the legalisation of registered partnerships which would have allowed unmarried same-sex and opposite-sex couples a number of rights. He said that the current Family Code was "adopted more than fifty years ago and no longer reflected social realities, both in the case of homosexuals and heterosexuals". This marked the first time in Romania that a politician had explicitly supported civil partnerships for same-sex couples.
A civil partnerships bill was introduced by Democratic Liberal Deputy Viorel Arion in February 2011. It would have provided same-sex and opposite-sex couples with some of the rights of marriage. It received a favourable recommendation from the Legislative Committee of the Chamber of Deputies. However, the bill was opposed by the Government, which stated that the Civil Code only recognises one form of relationship in Romania (marriage between a man and a woman).
Green Party bills
In April 2013, Green Party MP Remus Cernea announced he would introduce a proposed law that would give same-sex couples the same rights as heterosexual ones, prompting fierce reactions from opponents of the move. Among the most vehement was from Senator Puiu Hașotti, who described homosexuals as "sick people" and "not natural", prompting a formal complaint made by the gay rights organisation ACCEPT addressed to the National Council for Combating Discrimination. On 4 July 2013, Cernea introduced the bill in the Senate. A few months later, the Romanian Government issued a statement confirming they would not support the bill and on 17 December 2013 the bill was rejected by the Senate by 110 votes to 2. On 13 March 2014, a judicial committee unanimously advised the Parliament to reject the proposal. On 11 June 2014, the bill was rejected by the Chamber of Deputies with 298 votes opposed to the bill, 4 in favor of the bill and 5 abstentions.
2018/19 reform attempts
In April 2018, Liviu Dragnea, the President of the Chamber of Deputies, expressed his support for civil unions. On 9 October 2018, just days after the failed referendum to ban same-sex marriage in Romania's Constitution, the Minister for European Affairs, Victor Negrescu, stated that a bill allowing civil partnerships had been finalized and would be introduced in mid-October. However, in mid-October 2018, some media reported that the introduction of the bill had been postponed, and that the ruling Social Democratic Party (PSD) and Dragnea himself were no longer supporting the idea. On 29 October, the Senate rejected the bill introduced by Independent Deputy Oana Bîzgan. On 31 October, a group of 42 deputies from different parties submitted another bill to the Chamber of Deputies.
Two separate civil union bills were rejected by the Senate in March 2019. One bill recognised unions of same-sex and opposite-sex couples "for the purpose of setting up a shared private life and household". The other bill proposed shared rights for couples entering such a partnership and covered aspects such as succession rights, sanctions against domestic violence, the obligation to support an incapacitated partner, and fiscal facilities or social benefits granted by the state.
In June 2019, the Chamber of Deputies voted in favour of amending patient rights legislation, to allow patients to designate any person over 18 years of age as their "legal representative" through a statutory declaration. This allows same-sex partners (among others) to visit their partners in hospital and to make medical decisions on their behalf. The initiator of the law specifically referred to the fact that 10% of Romanians live in de facto unions as one of the reasons for the reform. The law was promulgated by the President on 24 July 2019 and came into effect on 28 July 2019. While the law does not specifically mention same-sex couples, it provides a mechanism for same-sex couples to obtain equal visitation and medical decision-making rights to different-sex married couples, by appointing themselves as "legal representatives" through a notary public.
Attempts to amend Constitution
Article 48 of the Constitution of Romania states:
The family is founded on the freely consented marriage of the spouses, their full equality, as well as the right and duty of the parents to ensur the upbringing, education and instruction of their children.[a]
Amending the Romanian Constitution requires approval by the people through a referendum. Until 2014, referendums required a 50% turnout to be valid, but changes to electoral law subsequently reduced this to 30%.
June 2013 attempts
On 5 June 2013, a parliamentary committee tasked with reviewing the Constitution voted to include sexual orientation as a protected ground against discrimination in the new Constitution. The same committee voted, the following day, to change the current marriage law form, which describes marriage as "a consensual union between spouses", to the more restrictive form, describing it "as a union between a man and a woman alone", thus banning same-sex marriage. Green Party MP Remus Cernea, who is a staunch supporter of LGBT rights and who introduced a draft law to the Senate in order to legalize civil unions, thought of the move to ban same-sex marriage as "clearly a democratic setback; Romania should now be included among the most homophobic countries in the world."
Dozens of NGOs protested the move and released a common statement arguing that the protection provision should remain in the new Constitution:
members of the Committee for Constitutional Revision deny the protection for the citizens who most need it (...) [and] as a Member State of the European Union, it is mandatory for Romania to implement the provisions of Community law in the national legislation.— ACCEPT, Sexual orientation should remain a protected ground in the Romanian Constitution!
we see the scale of schizophrenia: one day you accept sexual orientation as a Constitutional protected ground [against discrimination], the next day you act discriminately on the basis of sexual orientation proposing a different treatment for these citizens of Romania of this sexual orientation.
are brought to the table just to manipulate, just to incite, just to serve other goals then a real problem (...) [and] that at this point we are channeling the societal hatred through acts like the Constitution only, for example, to have [political] quorum (...) and this is not normal.
Save Romania Union was the only party with parliamentary representation that positioned against a potential referendum to amend the constitutional definition of the family and ban same-sex marriage in Romania. Since its establishment, several party members, including deputies and senators, have attended Bucharest Pride and Cluj Pride, respectively.
The Romanian Government announced plans to hold a referendum in the fall of 2017, following a successful citizens' initiative by a group opposed to same-sex marriage, Coaliția pentru Familie, which collected an estimated 3 million signatures in support of banning same-sex marriage. The Chamber of Deputies approved the initiative on 9 May 2017, in a 232–22 vote. However, no referendum was held that year. The Government proposed referendum dates of May and June 2018, though these passed without a vote. Eventually, the referendum was confirmed to be held on 6 and 7 October 2018. Less than two weeks out from the vote, on 27 September 2018, the Constitutional Court of Romania ruled that same-sex couples have the same rights to privacy and family life as heterosexual couples. The ruling, hailed as a landmark by LGBT advocacy groups the country, stated that legal rights and obligations should be equal under law.
Nonetheless, the referendum proceeded as planned on 6 and 7 October 2018. It failed to achieve validity as the turnout was 21.1%, well below the 30% required under the law. The lowest turnout (8.5%) was recorded in Covasna County. The highest turnout (30.7%) was in Suceava County, the only county to surpass the 30% threshold.
With the exceptions of Save Romania Union and the Green Party, none of Romania's major political parties, either in government or in opposition, explicitly supports same-sex marriage or registered partnerships, or has proposed any law regarding it, resulting in the debate about this issue in the political sphere being more reserved than in civil society and the media.
Crin Antonescu, the leader of the parliamentary delegation of the National Liberal Party, part of the governing alliance, declined to give an official party view on the matter. Instead, he said that "both the party and myself have given proof that we are in favour of recognising sexual minorities. However, personally I am against marriage between people of the same sex". The leader of the Democratic Party, the other large governing coalition member, was similarly elusive, stating that: "Now is not the right moment to talk about this issue [same-sex marriage]. We now have other much more important things to do regarding European integration. Let's integrate firstly, and then we can see the way in which mentalities change. Eventually, we will discuss this issue then". Romania's EU accession took place in January 2007. Liviu Negoiţă, the Democrat Mayor of Bucharest's Sector 3, stated that "if a law will exist [legalising same-sex marriage], I will respect it. As a mayor, I don't have any other choice. Personally, I respect the sexual choice of each person". The largest opposition party, the Social Democrats, whose stance on social issues is usually more conservative than that of the governing parties, stated that they would "not initiate and would not support such a legislative proposal". However, the party's official spokesperson also proclaimed that, "a public debate [on same-sex marriage] is necessary, in order to see in what way the standards regarding fundamental liberties can be improved in regard to people with another sexual orientation".
Opposition was seen most clearly from the far-right, nationalist Greater Romania Party. The vice-president of the party stated that "clearly, we wouldn't initiate such a legislative proposal, since we're a Christian party. The sin of sodomy is one of the biggest [sins]". The Conservative Party was less vocal in its opposition to same-sex marriage, with Octavian Petrovici, the vice-president of the party's Bucharest division, stating about same-sex couples that "it's their own choice, and in the same way that we respect the option of every citizen, we respect the choice of these people. However, it is a long way from respecting a choice to making special laws, which do not match the values and principles that our party affirms".
On 27 November 2006, the women's organisation of the Conservative Party adopted a resolution opposing same-sex marriage and same-sex adoption. The resolution declared that "the family has as its primary aim our continuity and we will continue to support its development, particularly since we will be confronted in the future with an accentuated process of aging and a significant reduction in the population. We reject categorically the legalisation of same-sex marriage".
On 10 June 2007, after the annual Bucharest GayFest, the Conservative Party reiterated its position on same-sex marriage, stating: "The sexual options of each citizen are accepted and respected in Romania, but from here until the adoption of special laws for sexual minorities is too long a way. We support the definition of marriage as a union between one man and one woman".
The 2015 Eurobarometer found that 21% of Romanians supported same-sex marriage. This was a 10% increase from 2006. EU-wide support was 61%.
An IRES poll conducted in December 2018 found that 27% of Romanians supported same-sex marriage, while 72% were opposed and 1% did not know or answer. 38% of Romanians supported civil partnerships, while 60% were opposed and 2% did not know or answer.
The 2019 Eurobarometer found that 29% of Romanians thought same-sex marriage should be allowed throughout Europe, 63% were against.
- In Romanian: Familia se întemeiază pe căsătoria liber consimţită între soţi, pe egalitatea acestora şi pe dreptul şi îndatorirea părinţilor de a asigura creşterea, educaţia şi instruirea copiilor.
In Hungarian: A család a házastársak szabad akaratnyilvánításából létrejött házasságon, a házastársak egyenlőségén és a szülők azon jogán és kötelezettségén alapul, hogy biztosítsák a gyermekek eltartását, nevelését és oktatását.
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- The Romanian Constitutional Court ruled that a proposal to replace între soți (between spouses) with între un bărbat și o femeie (between a man and a woman) was redundant, because that was the meaning of 'between spouses' in the text. Romanian Constitutional Court Decision No. 539/2018
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