For over a year now, one particular gay couple, a Lithuanian man and a citizen of Belarus, has been trying to convince the Lithuanian authorities and courts that they have the right to family reunification.
In December 2016, this legal conundrum took a new turn: the Constitutional Court of the Republic of Lithuania agreed to examine whether the provisions of the Law on the Legal Status of Aliens were in line with the country's Constitution.
Married, but not a family?
The story here dates back to September of 2015, when a Belarusian citizen married to a Lithuanian man applied to the immigration authorities for permission to live together with his spouse in Lithuania. The couple had officially married in Denmark that same year.
The Law on the Legal Status of Aliens does not officially prohibit the reunification of same-sex couples. Foreigners may obtain a residence permits on the basis of family reunification if they are married to or in a partnership with a Lithuanian citizen. The law does not specify that the marriage must be between persons of the opposite sex.
However, the migration authorities rejected the application, pointing out that the same-sex marriage was not permitted under Lithuanian law, and therefore the couple's marriage could not be given legal recognition in Lithuania.
According to the authorities, this would be deemed as family reunification, and as such there would be no legal grounds for issuing the permit. On appeal, the Vilnius Regional Administrative Court took a similar stance.
Is it constitutional?
The case eventually reached the Supreme Administrative Court of Lithuania (SACL), where it was examined by an extended panel of judges. In its ruling, SACL touched on several important aspects, namely, the applicability of EU law and issues concerning constitutional law.
The court ruled that EU law, specifically Directive 2004/38/EC (the so-called "Free Movement Directive"), could not be applied to the particular circumstances of the two men.
The plaintiffs had not been residing in another EU country for a significant length of time, as it is understood within EU law, and their brief visit to Denmark for the purposes of registering their marriage was not sufficient to engage the provisions of the directive.
However, in the court's view, the Law on the Legal Status of Aliens of the Republic of Lithuania does not ensure that persons who are living together for the purposes of creating a family relationship, but whose marriage is not recognized under national law, have the same guarantees as others.
This, the court believed, breaches the principle of equal treatment, disproportionately interferes with private life and is contrary to constitutional jurisprudence concerning the definition of the family.
In light of these considerations, SACL deferred the matter to the Constitutional Court for clarification.
What can we expect?
Back in 2011, the Constitutional Court controversially ruled that the Constitution recognized families that came about as a result of something other than marriage, based on "stable emotional attachment, mutual understanding, responsibility, respect, co-parenting and similar ties, as well as a voluntary decision to assume certain rights and obligations which form the basis of motherhood, fatherhood and childhood within the meaning of the Constitution."
The ruling made no mention of same-sex unions, which means that now the Constitutional Court has the opportunity to clarify its earlier interpretation.
Should the Constitutional Court decide to follow the arguments put forth by the Supreme Administrative Court of Lithuania, it is likely that its ruling will significantly strengthen the legal protection afforded to same-sex couples in the country.
A similar issue arose before the European Court of Human Rights last year. In the case of Taddeucci and McCall v. Italy, the ECtHR ruled that treating homosexual and heterosexual couples differently within the context of immigration (issuing residence permits to foreigners in cases of family reunification) violates the right to respect for private life and the prohibition to discriminate, as provided for in the Convention on Human Rights.
In a concurring opinion, Judge Spano (Iceland) pointed out that "the impossibility in Italy at the material time for same-sex couples to acquire marital status or other legal recognition of their relationship could not, under any reasonable interpretation of Article 8 taken in conjunction with Article 14 of the Convention, have made their relationships any less worthy of being treated as constituting a family unit within the particular context of immigration proceedings."
Although the Supreme Court of Lithuania made no reference to Taddeucci, it is likely it will play a part in the forthcoming Constitutional Court ruling.