In April 2001, the Netherlands became the first country in the world to open marriage to same-sex couples. Although Denmark has allowed same-sex couples to enter into registered partnerships since 1989, the Netherlands was the pioneer in providing equal marriage rights. Since 2001, over 35 countries worldwide have followed the Netherlands' example and legalised same-sex marriage. In this blog, Masuma Shahid, PhD candidate at Erasmus School of Law, discusses the recent ruling by the Dutch Supreme Court on 12 July 2024 regarding same-sex marriage in Curaçao and Aruba.
Same-Sex Marriage in the Kingdom of the Netherlands
Since 2010, Bonaire, Sint Eustatius, and Saba have held the status of special municipalities within the Kingdom. Due to changes in civil law that came into effect two years later, marriage has been open to same-sex couples since 2012. This is different for Aruba, Curaçao, and Sint Maarten. These countries within the Kingdom of the Netherlands regulate marriage independently. Only men and women are permitted to marry. As a result, same-sex couples have experienced discrimination for many years. On Aruba, a recent bill to legalise same-sex marriage was rejected, and the Prime Minister of Curaçao has repeatedly suggested that same-sex couples handle their legal and financial matters through cohabitation agreements and wills instead of marriage.
Curaçao and Aruba
The Human Rights Caribbean Foundation and Fundacion Orguyo Aruba, together with two same-sex couples, filed lawsuits against Curaçao and Aruba. The Court of First Instance of Curaçao ruled that as long as same-sex couples could not marry, the lack of an alternative (such as a registered partnership or another legal option) violated the principle of equality and the prohibition of discrimination in the Constitution. The Court of First Instance of Aruba reached a similar conclusion, adding that this also contravened Articles 8 (the right to respect for private and family life) and 14 (prohibition of discrimination) of the European Convention on Human Rights (ECHR). The governments of both islands appealed the decisions.
Joint Court of Justice Ruling
The Joint Court of Justice upheld the decisions in both cases. In the Aruban case, the Court concluded that not allowing same-sex couples to marry did not, in itself, violate the ECHR but did breach the prohibition of discrimination in the Aruban Constitution. In the Curaçao case, the Court ruled that Curaçao had indeed violated the ECHR by not introducing a registered partnership, as established by the European Court of Human Rights (ECtHR) in cases such as Vallianatos and Oliari. The countries disagreed with the Joint Court's judgment that the judiciary could open marriage to same-sex couples (instead of just the legislative branch) and sought cassation against the verdicts.
Supreme Court Ruling
On Friday, 12 July 2024, the Supreme Court upheld the Joint Court's decisions. Since the discrimination experienced by same-sex couples could not be rectified by invalidating the relevant legal provisions in Aruba and Curaçao (same-sex couples cannot legally marry there), the judiciary can address the issue by filling the legal gap. This must be done cautiously, as legislative authority and the democratic process take precedence, especially in socially sensitive matters. The judiciary must balance various interests. The interest of same-sex couples lies in not being discriminated against based on their sexual orientation. The inability of these couples to choose to marry represents a concrete legal gap that has existed for a long time. The legislature has not addressed this. The intervention by the Joint Court is technically straightforward and not dependent on further political decisions. Therefore, the Joint Court's intervention was justified to provide immediate effective legal protection.
Opening of Marriage to Same-Sex Couples in Aruba and Curaçao
As a result of the Supreme Court's ruling, the decisions of the Joint Court are final and same-sex marriage in Aruba and Curaçao is now legal. The Supreme Court's ruling marks a milestone in the history of the Kingdom concerning the development of LGBTI+ rights. It also highlights the significant role law firms can play through their pro bono strategic litigation. In these cases, the same-sex couples, the Human Rights Caribbean Foundation, and Fundacion Orguyo Aruba were supported pro bono for four years by a team from Nauta Dutilh.
National and International Law
The Supreme Court's ruling aligns with a global trend over the past fifteen years to open marriage to same-sex couples (see, for example, Slovenia, Taiwan, and Colombia). One example is the US Supreme Court, which legalised same-sex marriage across all 50 states with its 2015 Obergefell decision. The ruling also aligns with the 2017 advisory opinion of the Inter-American Court of Human Rights, which urged member states to open marriage to same-sex couples to prevent limiting their 'family life.' Same-sex marriage is now permitted in nine Latin American countries. Furthermore, the ECtHR has ruled that if countries do not want to open marriage to same-sex couples, they are obliged to offer at least the option of registered partnerships to provide legal recognition of their relationship. This jurisprudence applies to the separate countries within the Kingdom as well.
- PhD student
