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.
Once the ECJ has made its decision, the case will return to Romanian court.
The directive came about after Romanian officials refused to grant residency to Claibourn Hamilton, an American who married his Romanian partner, Adrian Coman, in Brussels in 2010, reports The Guardian. Or what is same, if a European citizen marries someone outside EU, he/she has right to have his or her partner move with him or her to any of twenty-eight Member States, regardless of wher or not law of country recognizes homosexual marriage.
According to top lawyer Wathelet, the word spouse is gender neutral. The couple challenged the decision in Romanian court, claiming it was discrimination based on sexual orientation.
EU Advocate General Melchior Wathelet advised [opinion, PDF] the European Court of Justice (ECJ) [official website] Thursday that the rights of same-sex spouses must be recognized by every member of the EU, even if a country's government has not authorized same-sex marriage.
The majority of E.U. nations have marriage equality, but some offer civil unions with equivalent or limited rights.
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The judge said the term "spouse" in European Union law had to be "interpreted autonomously and uniformly throughout the EU", adding that it "refers to a relationship based on marriage while nevertheless being neutral as to the sex of the persons concerned and indifferent as to the place where that marriage was contracted".
The ECJ's order is nonbinding.
Advocates general's opinions are not binding, but the court often rules the same way as the advocate general.
Sophie in 't Veld, vice president of the Liberal group in the European Parliament and vice president of the European Parliament's LGBTI Intergroup, said: "This is fantastic news and a landmark opinion for rainbow families".
The EU's freedom of movement principle grants rights to an EU citizen's spouse, without specifying how spouse is defined.
"Granting the spouse of a union citizen a right of residence constitutes recognition and the minimum guarantee that can be given them", the opinion concludes.