Celebrating the outcome.
THE HAGUE--Same-sex couples are now permitted to marry immediately in Aruba and Curaçao, as decided by the High Court in the Netherlands on Friday. It affirmed an earlier ruling by the Joint Court of Justice for the Dutch Caribbean.
The latter determined on December 6, 2022, that marriages between people of the same sex must be permitted in Aruba and Curaçao. Both governments turned to the High Court, which has now rejected their appeals.
The case was brought by “Fundacion Orguyo Aruba” and Human Rights Caribbean (HRC) in Curaçao. The Joint Court in Willemstad previously had ruled that the prohibition of same-sex marriage violated non-discrimination clauses in the constitutions of both countries.
The High Court has now upheld this ruling, which was met with applause in the courtroom in The Hague. It found that protection against discrimination on the basis of sexual orientation, where people are hindered in the freedom to organise their personal lives, weighs more heavily than the judicial branch’s expected restraint to intervene in a national ordinance.
The persons involved, two lesbian couples who want to be legally married, have a compelling interest in ensuring that the discrimination is eliminated as soon as possible.
The two governments had recognised that there is discrimination, but opposed the opening up of same-sex marriage. Both argued that this is up to the legislature.
The High Court acknowledges that in principle governments are better equipped than judges to assess what adjustments are necessary to eliminate discrimination. Moreover, in a democracy this is done with a legislative process which, partly due to the involvement of Parliament, is of great importance, especially when it comes to socially sensitive issues.
However, a legal deficit has existed for some time. The registered partnership, which had already been introduced in Aruba, is not a full-fledged alternative. According to the court, marriage has an intrinsic symbolic and emotional value that transcends the cohabitation contract and the registered partnership.
The court took into account that the objections of opponents of same-sex marriage often have a religious foundation. Freedom of religion must be guaranteed, but according to the court, it does not go so far as imposing one’s own religious norms and values on another.
The court then ruled that it is not outside its legal task to open marriage to persons of the same sex. It has determined that, when its ruling becomes final, a marriage can be entered into by two people of different or same sex and that the registrar must cooperate in this.
HRC is thrilled with the outcome. “Today [Friday, July 12 – Ed.], we celebrate a historic victory for the dignity and rights of [lesbian, gay, bisexual and transgender] LGBT individuals in Curaçao and Aruba. The High Court upheld the decision on appeal, meaning same-sex couples in Aruba and Curaçao can now marry. This marks a crucial milestone in our four-year fight for equality,” said chairperson Janice Tjon Sien Kie. “After a long and intensive legal battle spanning four years, we can finally close this chapter. This triumph is not a solo endeavour but the result of a collective effort by many dedicated individuals and organisations.
“Human Rights Caribbean is grateful for the commitment of all involved who contributed to this victory, especially our outstanding legal team consisting of David Wever, Mirto Murray and the appellate lawyers from NautaDutilh. We also acknowledge our local partners advocating for equality: Igualdat Kòrsou, Fundashon Orguyo Kòrsou, Kambrada and Curaçao Pride.
“Congratulations are due to the lesbian couple who bravely engaged in this legal process with us. They can now finally exchange vows. This ruling opens the door to a future where love and commitment between people of the same gender are fully recognised and celebrated. It offers hope and assurance for future generations that equality and dignity will be respected.
“It is important to emphasise that this ruling pertains to civil marriage and not religious marriages. Civil marriage at ‘Kranshi’ signifies legal recognition of the union between two individuals, regardless of their gender. Religious institutions retain autonomy and can decide on their internal marriage practices.”
The HRC chair finally referred to the second commandment Jesus gave to his disciples: “Love your neighbour as yourself” (Matthew 22:39). “Let us work together towards a world where love and respect for everyone are central.”
Immediately after the ruling a Curaçao female couple applied at the Civil Registry “Kranshi” to get married. They are two of the four women who filed the original lawsuits.
Ruthline Haddocks, Head of Public Affairs, confirmed the application. The first gay marriage in Curaçao is thus expected to be concluded in two weeks and most civil registrars are open to performing the usual ceremony, said Haddocks. “That has been discussed internally.”
There are also no obstacles with the system in which the basic administration is arranged. “Until this morning it was limited to between two people of the opposite sex. In accordance with this [Friday] morning’s verdict, I have agreed to open this application,” she said.
Human Rights Defence Curaçao (HRDC) called the ruling a major step forward for emancipation and equality and the same rights of a civil marriage. “Over the years we have seen a flood of institutionalised inequalities and violence, bullying in schools, denial of access to services and harassment at work. This decision in support of lesbians, gay, bisexual, transgender and queer groups paves the way for greater inclusion and acceptance of these people and can eventually help to reduce the stigma that associated with being LGBTQ.”
The Netherlands government also responded positively through State Secretary of Kingdom Relations Zsolt Szabó (PVV). “This is very good news for the community. Of course the ruling still needs to be studied further, but I am happy to hear that we are one step closer – that everyone can simply marry the person he or she loves, regardless of gender,” he said.
Dutch Member of Parliament Boris Dittrich (D66) followed the ruling via livestream. “It is important that the High Court gives equal marriage rights to same-sex couples throughout the Kingdom. The rule of law also works in the Caribbean part of the Kingdom. I'm very happy for all those in the Antilles, who have worked for years for equal rights. Congratulations to them and all of their allies,” said Dittrich, who chairs the First Chamber Committee for Justice and Security and is a member of the Kingdom Relations Committee.
D66 Member of Parliament Jan Paternotte also reacted positively. “All good news. Finally, certainty for Arubans and Curaçaoleneans who want equal rights.”
It is currently too premature to respond to the ruling, said Curaçao Minister of Education, Science, Culture and Sport OWCS Sithree “Cey” van Heydoorn. “This is something that concerns our country. I therefore think it is correct that we first study this internally, discuss and consider what the possible options are. But as a government we are aware of the feelings that exist within our society regarding this subject.”
Former PAR parliamentarian Stephen Walroud, who in the past together with Giselle Mac William submitted a law initiative for same-sex marriage, said the legal deficit has finally been corrected. “The rule of law in which we live provides clarity and peace. I'm glad I could contribute by holding on to the pure interpretation of the principle of equality. Unfortunately, nothing has been done about it by the current Parliament either. It is this inactivity of the legislature that has led, among other things, to people who felt wronged in their rights going to court.”
Said Flores of “Asosashon di Pastornan Kristian” APC was not surprised. “To be honest, we didn't expect anything different. It builds on the previous judgments. It’s a mess.”
Floris said that he does not agree with the content of the verdict. “The right of people of the same gender to be allowed to marry each other is not a human right. You can conclude this from various judgments of the European Court of Human Rights. My advice to government is therefore to submit this case to the European Court and to take action on the proposal of TPK Member of Parliament Rennox Calmes to put a ban on same-sex marriage in the Constitution."
The APK leader said that Christian pastors in principle do not want to get involved in politics. “But in this case they are attacking the family and also our freedom of religion. The fact that this ruling has now been made means that people will derive rights from it. It’s about something that goes against nature.
“It must be addressed in education. How can you do this as a parent? Stay out? Our religious freedom is now being compromised. This all depends on the acceptance in local society. That is currently not the case in Curaçao.”
The fact that marriage between people of the same sex is immediately permitted in Aruba and Curaçao is “a big step, the beginning of equality,” said Egmar Irausquin, secretary of the “Fundacion Orguyo Aruba” foundation. “There is still a lot to be done, but the beginning is there.”
He did not expect that same-sex marriage would be allowed so quickly. “I was previously thinking of 2030, because the High Court might take longer, or because we still had to take new steps.”
However, the latter is not necessary and that is why, according to Irausquin, it is time for celebration. According to him, people of the same sex could already get married at City Hall, but he hoped these couples would wait until he and his colleagues returned from the Netherlands.
Irausquin expects that resistance to the decision will be great. According to him, this is due to fake news surrounding the lesbian, gay, bisexual, transgender and intersex (LGBTI) theme. This would have created the image that children are victims of the LGBTI community. “But marriage has nothing to do with that, ultimately people can now just get married.”
He thinks that resistance will be greater in Curaçao, because the debate has not yet taken place there and the step will be more “intense” there. A trial has already taken place in Aruba on a bill to allow same-sex marriage. Votes in Parliament tied 10-10, in effect rejecting the proposal.
