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Nov. 25 (UPI) — The European Court of Justice ruled Thursday that European Union member nations must recognize the same-sex marriages of couples relocating from another EU state, even if same-sex unions are not permitted under their domestic law.

Judges in the court in Luxembourg, ruling in the case of two men lawfully married in Germany who were denied recognition of their union by authorities in Poland on their return to their home country, said it violated their fundamental right to a “normal family life,” the ECJ said in a news release.

The case was referred to the ECJ by Poland’s Supreme Court where the men were appealing against authorities’ refusal to transcribe their German marriage certificate into the civil register so that their marriage would be recognized, on grounds same-sex marriage is not legal in Poland.

Poland is a largely Catholic, socially conservative nation where LGBT rights are highly controversial import from permissive societies and LGBT-free zones are common.

The landmark decision said that while rules governing marriage fell under individual member states’ domestic law, they must comply with EU law in exercising that power.

Given EU citizens’ right to move and reside in any of the 27 member nations, couples who have built a family life in a host country “must have the certainty to be able to pursue that family life upon returning to their member state of origin,” the ruling said.

The judge said that where couples had opted to move, bans may cause serious inconvenience at administrative, professional and private levels, forcing spouses to “live as unmarried persons” in their own country.

“Such a refusal is contrary to EU law. It infringes not only the freedom to move and reside, but also the fundamental right to respect for private and family life,” the ruling states.

However, while the decision sets a precedent for recognition of same-sex marriage across the bloc it only mandates equal treatment of marriages conducted abroad, regardless of the sex of the couples.

It does not override national laws prohibiting same-sex marriage or require member states to provide for marriage between persons of the same sex.

The matter now returns to the Polish court, which must instruct authorities to officially recognize the couple’s marriage, but it can decide how that is done.

The case is an extension of a historic 2018 ECJ ruling that said married same-sex couples who were EU citizens had the legal right to live in any EU country, including nations that did not recognize same-sex unions.

Of the bloc’s 27 member states. at least two — Slovakia and Hungary — have legal or constitutional bans on same-sex marriage.

However, both allow same-sex couples a mechanism for their relationship to be legally recognized.

The US Supreme Court has declined to overturn Obergefell v. Hodges, its landmark ruling that legalised same-sex marriage nationwide.

On Monday (10 November), the court denied the appeal from Kim Davis, the former Kentucky county clerk who made headlines for refusing to sign marriage licenses for gay couples. Davis faces hundreds of thousands of dollars in damages and legal fees.

The possibility of same-sex marriage being overturned gained widespread attention in 2022 after the court’s 6-3 conservative majority overturned Roe v. Wade, ending the federal right to abortion. Another factor is that the Supreme Court is now far more conservative than the court that decided Obergefell in 2015.

According to reports, the court did not provide an explanation for its decision to deny the appeal.

Kelley Robinson, president of the Human Rights Campaign, said in a statement: “Today, love won again. When public officials take an oath to serve their communities, that promise extends to everyone – including LGBTQ+ people. The Supreme Court made clear today that refusing to respect the constitutional rights of others does not come without consequences.”

Justice Anthony Kennedy, the key swing vote who authored the Obergefell decision in 2015 and retired three years later, added: “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family. In forming a marital union, two people become something greater than they once were.”

Davis was represented by Liberty Counsel, a far-right Christian legal group and Southern Poverty Law Center-designated anti-LGBTQIA+ hate group.

Founded in 1989, the group has consistently campaigned against LGBTQ+ rights, opposing same-sex marriage, the decriminalisation of homosexuality, and measures banning conversion therapy.

In her Supreme Court appeal, Davis raised several arguments, focusing on religious freedom and claims of sovereign immunity, while also directly challenging the Obergefell decision.

She contended that the Constitution “makes no reference to same-sex marriage and no such right is implicitly recognized by any constitutional provision.”

Mary Bonauto, a seasoned civil rights attorney with GLAD Law who argued the Obergefell case, welcomed the Supreme Court’s swift dismissal of Davis’ appeal.

“The only thing that has changed since Obergefell was decided is that people across the country have seen how marriage equality provides protection for families and children, and that protection strengthens communities, the economy and our society,” she said.

“Today millions of Americans can breathe a sigh of relief for their families, current or hoped for, because all families deserve equal rights under the law.”

WASHINGTON — The Supreme Court on Monday dismissed without comment a long-shot challenge to the constitutional right to marry for same-sex couples.

The justices turned away an appeal petition from Kim Davis, a former Kentucky county clerk who defied the court’s landmark decision in 2015 and repeatedly refused to issue marriage licenses to same-sex couples.

She appealed after one couple sued and won $100,000 in damages plus attorneys fees for her deliberate violation of their constitutional rights.

She argued the court should hear her case to decide whether the free exercise of religion guaranteed by the 1st Amendment should have protected her from being sued.

Her appeal also posed a separate question she had not raised before in her long legal fight. She said the court should decide “whether Obergefell v. Hodges” which established the right to same-sex marriage “should be overturned.”

That belated question drew wide attention to her appeal, even though there was little or no chance it would be seriously considered by the high court.

Some LGBTQ+ advocates were concerned, however, because the conservative court had overturned Roe vs. Wade and the constitutional right to abortion in the Dobbs case of 2022.

Justice Clarence Thomas, writing for himself alone, said then “we should reconsider all of this court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” referring to cases on the rights to contraception, private sexual conduct and same-sex marriages.

But other conservative justices had disagreed and said abortion was unique. “Rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe … termed ‘potential life,’ ” Justice Samuel Alito Jr. wrote in his opinion for the court.

Justice Amy Coney Barrett in her new book “Listening to the Law” described the right to marry as a “fundamental right” that is protected by the Constitution.

“The complicated moral debate about abortion stands in dramatic contrast to widespread American support for liberties like the rights to marry, have sex, procreate, use contraception, and direct the upbringing of children,” she wrote.

In July, the Williams Institute at the UCLA Schooll of Law school estimated there are 823,000 married same-sex couples in the United States and nearly 300,000 children being raised by them.

Davis had suffered a series of defeats in the federal courts.

A federal judge in Kentucky and the 6th Circuit Court of Appeals in Cincinnati rejected her claims based on the free exercise of religion.

Former Rowan County Clerk Kim Davis speaks to reporters in Kentucky in 2015. The Supreme Court rejected her appeal to overturn the right to same-sex marriage.

(Timothy D. Easley / Associated Press)

Those judges said government officials do not have free speech or religious right to refuse to carry out their public duties.

“That is not how the Constitution works. In their private lives, government officials are of course free to express their views and live according to their faith. But when an official wields state power against private citizens, her conscience must yield to the Constitution,” wrote Judge Helene White wrote for the 6th Circuit Court in March.

Ten years ago, shortly after the court’s ruling in Obergefell vs. Hodges, Kentucky’s governor, the county’s attorney and a federal judge all told Davis that she was legally required to give a marriage license to same sex couples who applied for one.

She refused and said the county would issue no marriage licenses until she had been given a special exemption.

David Moore and David Ermold had been a couple for 19 years, and they filed suit after they were turned away from obtaining a marriage license on three occasions. Davis said she was acting “under God’s authority.”

A federal judge held her in contempt for refusing to comply with the law. While she was in jail, the couple finally obtained a marriage license from one of her deputies but their lawsuit continued.

The Kentucky legislature revised the law to say that county clerks need not put their name on the licenses issued by her office. Davis said that accommodation was sufficient, and she tried to have the lawsuit dismissed as moot.

The 6th Circuit refused because the claim for damages was still valid and pending. The Supreme Court turned away one of her appeals in 2019.

A federal judge later ruled she had violated the rights of Moore and Ermold, and a jury awarded each of them $50,000 in damages.

Mat Staver, founder of Liberty Counsel in Orlando which advocates for religious freedom, appealed on her behalf.

His petition to the Supreme Court said the court should hear her case to decide whether the 1st Amendment’s protection for the free exercise of religion should shield a public official from being sued “in her individual capacity.”

The 6th Circuit Court rejected that claim in a 3-0 ruling.

“The Bill of Rights would serve little purpose if it could be freely ignored whenever an official’s conscience so dictates,” Judge White said.

“Indeed, it is not difficult to imagine the dire possibilities that might follow if Davis’s argument were accepted. A county clerk who finds interracial marriage sinful could refuse to issue licenses to interracial couples. An election official who believes women should not vote could refuse to count ballots cast by females. A zoning official personally opposed to Christianity could refuse to permit the construction of a church,” she said.

Judge Chad Readler, a Trump appointee, said even if public employees have some rights based on their religious views, “her conduct here exceeded the scope of any personal right. … Rather than attempting to invoke a religious exemption for herself, Davis instead exercised the full authority of the Rowan County Clerk’s office to enact an official policy of denying marriage licenses to same-sex couples, one every office employee had to follow.”