Supreme Court likely to dismiss appeals against same-sex marriages

THE HAGUE — Aruba and Curacao have to allow marriages between same-sex partners. Both countries appealed the decision by the Common Court of Justice that ordered both countries to recognize these marriages at the Supreme Court in the Netherlands. Attorney-General Snijder concluded that the Supreme Court should reject the appeals. The final decision about this matter is expected on May 31, 2024.

On December 6, 2022, the Common Court of Justice ruled that same-sex couples can get married and ordered Aruba and Curacao to cooperate. The court ruled that the ban on same-sex marriage violates the constitutional ban on discrimination. The countries did not appeal this part of the ruling; instead they argued that the court had overstepped its authority.

The Aruban Fundacion Orguyo and two women who are in a relationship were the opponents of Aruba in the case at the Supreme Court. The appeal filed by Curacao (against Human Rights Caribbean Foundation and two women) resulted in a similar advice from the attorney-general.

The Common Court ruled that the rights the law offers to heterosexual couples (for instance fiscal law, pension law and inheritance law) are withheld from couples of the same sex. “This results in a discrepancy between what the law offers to citizens and the social reality. There is no objective justification for it, because this is about individuals with unchangeable characteristics.”

The countries argued that it is not up to a court to deal with the question whether marriage should be open to couples of the same sex; it is up to the legislator who can thereby choose for a registered partnership.

Aruba established registered partnership on September 1, 2021. Both countries pointed out that marriage for same-sex couples is a social sensitive matter.

In his conclusion, Attorney-General Snijder notes that this is “a remarkable point of view,” because the key question to decide whether there is a case of discrimination is almost always whether there is sufficient justification for making a distinction.

The constitution of Aruba states that laws will not be applied if they are at odds with basic rights.

“Excluding same-sex marriage is unequal treatment based on sexual orientation. This is a very serious form of discrimination,” the conclusion states. “Discrimination based on sexual orientation is the same as discrimination bases on gender, race and religion.”

Aruba assumes that there are several possible solutions and that it is possible to make political choices. That is incorrect, the conclusion states: “The only way to put an end to this shortcoming in the law is by opening marriage for partners of the same sex.”