06 June 2018

ECJ asserts same-sex spousal rights, while US court rules on 'gay cake' case

Two courts, two outcomes: ECJ backs same-sex cuple in residence case, while US Supreme Court backs bakery business in 'gay cake' case.

The European Court of Justice (ECJ) has ruled that even if an EU country's government has not authorised same-sex marriage, same-sex couples must still be offered the same residency rights as heterosexual couples. The issue arose because EU law permits the spouse of an EU citizen to obtain a residence permit for any member state where the spouse resides. However, Romanian authorities refused to honour a request of a same-sex couple married in Brussels in 2010. The couple challenged the decision in Romania's constitutional court, which then referred the case to the ECJ. Pro bono lawyers from White & Case acting for the couple welcomed the decision. Brussels-based White & Case partner Jacquelyn MacLennan, the firm’s global pro bono practice leader, said ‘This is the first time that the Court of Justice has had an opportunity to rule on this matter, and it is a milestone on the road to full equality for same sex families across Europe.’

US Supreme Court ruling
The US Supreme Court backed a Christian bakery business who refused, based on Christian beliefs, to make a wedding cake for a gay couple. The ruling stopped short of setting a major precedent allowing people to claim religious exemptions from anti-discrimination laws. The justices, in a 7-2 decision, said the Colorado Civil Rights Commission showed an impermissible hostility toward religion when it found that baker Jack Phillips violated the state’s anti-discrimination law by refusing to bake the cake. Justice Anthony Kennedy, stated ‘our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth,’ but then said the state commission’s hostility toward religion “was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion.’