THE HAGUE — The Common Court of Justice was correct when it ruled that excluding partners of the same sex from marriage in Aruba and Curacao violates the constitutional ban on discrimination. Both countries appealed in cassation against this ruling at the Supreme Court in the Netherlands but Solicitor-General Gerbrant Snijders writes in his conclusion that the appeals are baseless. Supreme Court rulings traditionally follow such a conclusion.

The conclusion has far-reaching consequences for same-sex partners, not only in Aruba and Curacao, but also in St. Maarten. In December 2022 the Common Court of Justice ruled that persons of different and persons of the same sex can get married. It ordered that civil servants at the civil registry cooperate with marriages between partners of the same sex.

Snijders writes in his conclusion that Aruba’s constitution does not contain an article that anchors marriage as a union between two people of a different sex.

“There is no decent justification for excluding partners of the same sex from marriage and such exclusion is therefore discrimination.”

Both Aruba and Curacao did not contest that excluding partners of the same sex from marrying violates the ban on discrimination. Instead, they stated that it is not up to the court to adjust the legislation but that this is the prerogative of the legislator. Additionally, they argued that the legislator can choose to establish the right to a registered partnership.

The rulings in the case of Aruba and Curacao are similar. Aruba argued that there is resistance against same-sex marriage, labeling it as “a socially sensitive issue.”

But the Supreme Court’s solicitor-general points out that excluding same-sex couples from marriage amounts to unequal treatment based on sexual orientation. “This is a very serious form of discrimination.” The countries did not contest the notion that sexual orientation is based on biological predisposition and not on free choice.

The islands, including St. Maarten, are already forced to accept same-sex marriages that are performed in other parts of the Kingdom, like the Netherlands or the BES-islands. Article 40 of the Kingdom Charter states that Dutch same-sex marriages must be accepted elsewhere in the kingdom – not only in Aruba and Curacao, but also in St. Maarten. The countries have to accept each other’s judicial rulings and authentic deeds, also if they do not match local views.

Previously the Court in First Instance stated in a ruling that affectionate relationships and living together of partners of the same sex is a social reality and that this does not result in social problems. However, the fact that same-sex partners are not allowed to get married does have consequences for them. “There is therefore a discrepancy between the authorities the law extends to citizens and the social reality.”

Adjusting legislation requires a simple improved reading (for instance by replacing ‘man and woman’ with ‘persons’) for which there is no reasonable alternative. The only alternative would be to abolish marriage altogether and in that case everybody would be worse off,” Snijders writes in his conclusion.

The current social views do not provide Aruba with justification for a different treatment of partners of the same sex. It does not suffice for Aruba to stick to a registered partnership because not opening marriage for same-sex partners amounts to discrimination.”

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Related news: Same-sex marriage dossier>>>

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OPINION PIECE

Freedom

By Hilbert Haar

Freedom stops where it infringes upon the freedom of others. If someone chooses to declare him or herself a Catholic, that’s fine with me. But convincing me, a staunch atheist, that I have to become a Catholic too, is going too far. I do not accept that, the same way I won’t attempt to convince Catholics that they should become atheists. Religious people have faith and you cannot argue with faith. I put my money on science, where evidence is a deciding factor.

At times, people’s views have nothing to do with faith or science. That is for instance the case with opinions about marriages between partners of the same sex. The opponents of such unions have, in my opinion, only the sexual interaction between these partners on their mind, while they apparently never get it into their heads to question the sexual interaction of heterosexual couples. Ain’t that weird?

A long time ago I proposed a very simple solution for such disputes: if you oppose same-sex marriage, do not marry someone of your own sex. Case closed I thought, but of course it wasn’t.

The same-sex marriage debate in Aruba and Curacao went all the way to the Supreme Court in the Netherlands, after the Common Court of Justice in Curacao correctly ruled that banning partners of the same sex from getting married amounts to discrimination. And that is prohibited in the constitution of both countries, and in St. Maarten too.

Aruba thought it had solved the problem by introducing registered partnership for couples of the same sex. Incorrect, says the solicitor-general at the Supreme Court, because banning those couples from getting married is still discrimination.

The court has therefore given Curacao and Aruba its marching orders. The countries will have to cooperate with marriages between partners of the same sex, whether they like it or not. St. Maarten was not a part of these court cases, but in my opinion the Supreme Court-opinion should have consequences on our island as well. After all, members of parliament and ministers all swear to uphold the constitution when they take office. Personal opinions of lawmakers about this issue are not important, because they are there to protect the interests of the people who voted them into office.

Our constitution also contains an anti-discrimination article. Discrimination on any ground is prohibited and therefore discrimination based on sexual orientation is a big no-no. Gerbrant Snijders, a solicitor-general at the Supreme Court points out in his conclusion that sexual orientation is not a matter of free choice. It is a matter of biological predisposition.

I’d like to make this point because in the past I have written that sexual orientation was a matter of choice. It isn’t, so I was wrong. My apologies.

We know now the direction the matter of same-sex marriage is going in Curacao and Aruba. What about St. Maarten? Surely, we do have same-sex couples in our community as well and they do not cause anybody any trouble.

I am now waiting for the new government (once it is in office) or the new parliament to take a step in the right direction by changing the civil code in such a way that is enables marriages between partners of the same sex.

Will that really happen? I wonder very much but even a heterosexual like me is allowed to dream. Right?

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