Years of love and marriage may still not be enough for a State to legally recognise a relationship. This is the situation facing hundreds of same-sex couples and rainbow families worldwide. Among them, there is also the one formed by Adrian Coman, from Romania, and his husband, American citizen Robert Claibourn (Clai) Hamilton.
Together, they have sued Romanian state for refusing to recognise their marriage, which took place in 2010 in Brussels. Their case is now being heard by the Constitutional Court, which will issue its decision on September 20.
We met Adrian and Clai - together with ACCEPT board member Iustina Ionescu, the human rights lawyer representing them - to learn more about their story, and the struggles facing rainbow communities in Romania, where the court has recently given green light to a referendum aimed at changing the definition of family in the constitution by removing the word “spouses” and replacing it with a specific reference to one man and one woman.
I would like to begin this interview asking you about your personal stories: when did you meet, and when did you get married?
Adrian: We met in 2002 in Central Park in New York City and have been together ever since. We got married in Belgium in 2010, at a time when we were living apart, Clai in New York, and I in Brussels. The marriage was a reconfirmation of the love and commitment we had for each other. It was also the first time either of us was living in a place where we could marry.
Clai: I adored him from the first day we met in Central Park. I discovered we loved many of the same things: cooking, art, fashion, and travel. This adoration has resulted in 14 years of love and marriage. Marrying in Brussels was amazing, like a fairy-tale, in the beautiful city hall of Schaerbeek, followed by a meal with friends in a French restaurant near the European Parliament.
Your relationship is legally not recognized in Romania at the moment: what does this mean, in terms of rights you both are being denied of at the moment?
Adrian: Once we cross the Romanian border, we cease to be a family, in the eyes of the Romanian authorities. We cannot represent each other before the law in Romania, for instance if I were to go to the emergency room of a hospital, as it was the case last year in NY when Clai took care of me for a month, and the hospital recognized him as my spouse.
Was there a specific moment that made you decide to bring an official case asking for your marriage to be recognized?
Adrian: We filed a discrimination complaint in 2013 after the refusal of the Romanian authorities to consider a residence in Romania for Clai. I was unemployed in Belgium in 2012, trying to identify where Clai and I could be together again and be recognized as a family. Romania effectively denied our right to free movement, safeguarded in EU principles and law. The Romanian Consulate in Brussels also refused to transcribe our Belgian marriage certificate into the Romanian register. That was a humiliating and sad moment.
Romania’s representations abroad are there to help Romanian citizens like me, not to implement institutionalized discrimination.
Clai: I met some of the nicest people in my life in Romania (and some of the best food!). Everybody was nice to us, except the government in refusing to consider my residence as Adrian’s spouse. People smiled at us and congratulated us, from our friends, to the journalists who interviewed us, to the owner of a restaurant where we were having dinner, who offered us a bottle of champagne, having recognized us from the news.
What are the legal challenges in this case you are bringing? And how long did it take to reach the stage of the hearing being heard before the Constitutional Court?
Iustina: The proceedings started in 2013 and it took the courts almost two years to decide at which level the case will be tried on the facts of the case. The matter was settled in 2015, when we had our first hearings in front of a lower tribunal in Bucharest. There we raised the preliminary question regarding the constitutionality of the article from the Civil Code banning the recognition of marriages of same-sex couples conducted abroad, in correlation with the legal provisions saying freedom of movement is guaranteed to all EU citizens.
Basically, we challenged the constitutionality of not recognizing the fact that a same-sex married couple remains a family after crossing the border and entering Romania when one husband is an EU citizen.
Our hearing at the Constitutional Court was scheduled on July 20th, six months after the lower tribunal agreed to raise the preliminary question. However, the Court postponed its decision to September 20th, two months after hearing our case; its President of the Court declared to the media that they need more time to digest all the arguments made in the case.
This is the first case when the Constitutional Court is asked to decide on the right to private and family life of a same-sex couple. The lack of case law on this topic at the Constitutional Court (and at any court in Romania) is a challenge and an opportunity. It will be up to the judges of the Constitutional Court to consider whether it is necessary for the examination of the case in the first instance court to answer to the constitutional questions raised by the couple of Adrian and Clai.
Adrian Coman and Clai Hamilton with lawyer and ACCEPT board member Iustina Ionescu (ph. Larisa Baltă)
The case was heard on the same day the Constitutional Court gave green light to a referendum aimed at changing the definition of family in the constitution, removing the word “spouses” and replacing it with a specific reference to a man and a woman. What will happen now, in your opinion?
Iustina: When the Court joined these two cases, it must have thought that they are connected by the common theme. After the hearing, when the Court separated them again, it must have thought that there are clear differences – the referendum case is about the definition of marriage, and Adrian and Clai’s case is about the content of the right to family.
The Court was on a strict deadline to decide on the referendum and it gave its approval for the procedure to continue in the Parliament. However, omitting that the proposed amendment refers to the definition of family and not only to the definition of marriage, the Court allowed an initiative that aims to place outside constitutional protection a variety of families that are not based on heterosexual marriage – single parent families, extended families, different-sex families who are not based on marriage, and same-sex families. How will these families be called after the Constitution will change?
There is the chance that, in case the referendum is held, it will take place at the same time of the Parliament elections. Do you think this may lead to "license" hate speech against the LGBTI community during the electoral campaign?
Iustina: Organizing this referendum and the Parliament elections at the same time represents a social danger. Homophobic sentiments, that are pervasive in our society, will be raised to the level of political and electoral discourse. The electoral campaign will be turned away by these messages and the LGBT persons will be made the scapegoat for all Romanians’ problems.
I would also like to emphasize the fact that the initiative group is supported by an unregistered coalition of organizations, lacking any type of transparency regarding funding or their links with organizations outside Romania.
For instance, we publicly announced that organizations such as ILGA-Europe, Amnesty International, the European Commission on Sexual Orientation Law and the International Commission of Jurists have contributed to the constitutional debate with amicus curiae briefs. However, the Family Coalition noted the contribution of foreign organizations such as the Liberty Counsel only after the Constitutional Court made its decision. It is also worth mentioning that the Liberty Counsel declared that its worldwide mission is to ensure that same-sex marriage is banned in as many countries as possible, following the US Supreme Court decision.
This organization is considered a hate group by US based Southern Poverty Law Center. We see them involved in many countries across Central and Eastern Europe, as well as Africa, trying to limit LGBT rights and sexual and reproductive rights. This spill-over effect needs to be better counterbalanced by human rights organizations based in the US, especially considering the fact that, quite often, we at ACCEPT represent couples in which one of the partners is a US citizen. Romanians should also be more aware that foreign organizations with a far right agenda are trying to influence public policy.
The religious right has actively supported the referendum, and it is campaigning in many parts of the world to allegedly support “traditional” families: what can be the best response to their strategies, in your opinion?
Iustina: The best response is the one that the President of Georgia, Giorgi Margvelashvili, gave a few weeks ago to the initiative to organize a similar referendum in his country – he blocked the referendum bid motivating that the constitutional definition of marriage is clear and the Civil Code is already banning same-sex marriage.
People are not aware that the actual agenda of the religious right is not to ban same-sex couples from getting married, but to impose on everybody their own understanding of what “family” is, in all aspects: who you can marry with, what the role of each spouse in the household is, how many children you have, at what age you have children, who takes care of children, how you raise them, whether you vaccine them or not, how you educate them, etc.
Adrian: Romania should not change the course it embraced when it joined the European Union. We joined a union of freedoms and respect for human rights of all, in addition to a common market of welfare and free movement.
Romanian politicians and courts have to lead the Romanian people towards living in harmony, with respect for each other and for our human diversity. They need political vision and action to make every Romanian count.
I hope our politicians and courts will raise to that challenge, as opposed to giving course to prejudice in today’s society.
ACCEPT Association offers psychological and legal counselling to those in need. However, because of limited resources, they are not always able to represent members of the community in a court of law. Nonetheless, ACCEPT is constantly looking for cases that can further significant policy changes regarding LGBTI rights. If you have been a victim of discrimination or you and your spouse wish to be recognized in Romania, get in touch with ACCEPT through this online form.