Published On: Thu, Dec 8th, 2022

Court orders Aruba and Curacao to allow same-sex marriages

WILLEMSTAD — Curacao and Aruba can no longer prevent marriages between partners of the same sex. The Common Court of Justice ruled on December 6 in two separate, though identical cases, that refusing to marry same sex partners violates an article in the local constitutions that prohibits discrimination. The court has ordered civil servants in both countries tasked with conducting marriage ceremonies to cooperate with marriages between same-sex partners by issuing marriage certificates. The ruling goes into effect once it has become irrevocable. Both countries could still challenge it by submitting an appeal at the Supreme Court.

The case in Curacao pitted the Human Rights Foundation and two women against the country’s refusal to marry them. In Aruba the Pride Foundation (Fundacion Orguyo Aruba) and two women did the same thing.

The appeals used arguments from the European Human Rights Court and from the IVBPR (International Treaty for the Protection of Human and Political Rights) to support their demands. The court denied those arguments, saying that the EVRM (European Human Rights Treaty) anchors the traditional marriage as a union between a man and a woman.

The constitutions of Aruba and Curacao do not contain a similar article. Those same constitutions however, saved the day for the plaintiffs, because they prohibit discrimination in similar circumstances “on whatever ground.”

The court ruled that two men or two women who want to marry find themselves in the same situation as a man who wants to marry a woman. “That two persons of the same sex cannot, while two persons of different sex can marry amounts to a clear difference in treatment by the legislator,” the ruling states.

The court states that marriage is a strong institution and that there is no objective justification for the fear that this will change by opening the civil marriage for persons of the same sex.

“The objections of opponents of same-sex marriage often have a religious foundation. Freedom of religion must be guaranteed, but that freedom does not mean that people can impose their own religious values onto others. Same-sex marriage does not rob its opponents of the right to marry the person of their choice,” the ruling states.

The countries fielded yet another argument against same-sex marriages: the fact that it is impossible for same-sex partners to have children together. “This argument falls short. Marriage is not linked to procreation. There are different-sex couples who cannot or do not want to have children.”

The court also dismissed the argument that a majority of the population opposes same-sex marriages. This has not been researched properly and it has not been established. And even so, it would not be a decisive factor, the court pointed out.

That same-sex partners have the option to get married in Bonaire is not a valid argument either: “This denies the fundamental character of the case. It is up to a country to guard the basic rights of its citizens.”

The court concluded that there are no good arguments to justify the exclusion of same-sex partners from marriage. “And if there would be, they would lack the proportionality between means and objective.”

Because Aruba and Curacao do not plan to introduce the registered partnership in the short term, the court considers excluding same-sex partners from marriage as a violation of the constitutional prohibition of discrimination and of the article that guarantees the right to privacy.

The court notes that it is within its authority to correct legislative shortcomings. “These shortcomings have been in existence for quite some time. In the Netherlands the legislator has opened marriage for same-sex partners already twenty years ago. In other countries, the courts have intervened.”

The ruling furthermore points out that local legislation only requires minor adjustments to legalize same-sex marriages. It declared that the relevant article in the civil code (marriage can only exist between a man and a woman) violates two articles in the local constitutions and that it therefore has to be ignored. The rulings do not have any consequences for the laws that regulate adoption.

In the Caribbean region, same-sex marriages are already legal in Bonaire, Saba, Statia, Puerto Rico, French overseas territories, the US Virgin islands and Cuba.


Related article: Opinion: Freedom of Choice