Supreme Court validates same-sex marriages in Curacao and Aruba
THE HAGUE – Curacao and Aruba – and by extension St. Maarten – have to allow partners of the same sex to marry, the Supreme Court stipulated in a ruling dated December 22, 2023.
The ruling is the conclusion of a legal dispute that began with a ruling by the Court in First Instance dated September 13, 2021. The court ruled that banning same-sex marriages violates the constitutional ban on discrimination. On December 6, 2022, the Common Court of Justice in Willemstad supported this ruling. Both Curacao and Aruba appealed in cassation to the Supreme Court in The Hague.
The countries did not contest the conclusion that the ban on same-sex marriages violates the discrimination ban; instead they claimed that with this ruling the court overstepped its authority.
The Supreme Court ruled that there is no reasonable and objective justification for “a discrepancy between the social reality and the rights of citizens.” It furthermore noted that homosexuality is not a free choice but “the result of an individual’s unchangeable characteristic.”
The court also ruled that the classic fundamental rights of a minority cannot be made dependent on the opinion of the majority. “Not for nothing, this is about basic rights,” the ruling states.
Another issue is that national ordinances cannot be applied if they violate the European Human Rights Charter.
Curacao and Aruba’s main argument to the Supreme Court was that it is not up to the court to regulate same sex marriage but that this task falls within the authority of the legislator – in other words: the respective parliaments.
“In this context we note that the commandment of equal treatment in equal cases gets additional weight for the legislator, since the court gets the authority to judge actions of the legislator on their constitutionality related to classic rights.”
On April 13, 2007, the Supreme Court already ruled that same-sex marriages conducted in the Netherlands must be respected in the other countries within the Kingdom. “Countries must respect each others’ court rulings and authentic deeds, also if they are at odds with local opinions.”
The plaintiffs in this case stated to the court that around 10 percent of the population in Curacao is homosexual or lesbian – around 16,000 people. The countries stated that same-sex marriages are at odds with religious views but the court countered this claim as unsubstantiated.
The Supreme Court also addressed Curacao and Aruba’s main argument that it should not intervene in matters that are the authority of local legislators.
“Refraining from intervention can only be justified if there is a choice between several options that are up to the legislator,” the ruling states, adding later on that there is only one solution, namely, allowing partners of the same sex to marry.
“Serious injustices demand faster interventions, also when the legislator is aware of the situation but lingers with intervention.”
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