Marriage at a Crossroads in Romania

• Post by: Adina Portaru
• January 5, 2017

Romania is at a marriage crossroads. On the one hand, Romania will hold a referendum in the spring of 2017 to constitutionally enshrine marriage as the union of one man and one woman. The petition for the referendum received the most support of any so far in Romania’s his­tory as a democracy, and it was unanimously approved by the Romanian Constitutional Court. On the other hand, the same Romanian Constitutional Court has prompted a “European Obergefell v. Hodges” case, having referred pre­liminary questions to the Court of Justice of the European Union (CJEU) relating to the concept of “spouses” in European Union (EU) free move­ment legislation. If the CJEU interprets “spouses” as including same-sex partners, then all 28 Member States of the European Union would be obliged to recognize same-sex “marriages” contracted abroad, even if their domestic legislation as it currently stands does not allow them. In the long term, the decision of the CJEU would render the Romanian referendum moot as it may introduce same-sex “marriage” through the back door in all 28 EU Member States. How could such diverging actions be possible? Legal Overview The areas of marriage and family are largely regulated by the Romanian Constitution and the Civil Code. Article 48 (1) of the Romanian Constitution 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 ensure the upbringing, education and instruction of their children.” The drafters’ intention to include “man and woman” in the defini­tion of “spouses” is illustrated by the Civil Code, which was drafted after the Constitution and which speaks, in Article 258 (4), of “the man and the woman united through marriage.” Moreover, Article 259 (1) of the Civil Code states that marriage is “the freely consented union between one man and one woman.” In addition to defining what marriage