ORANJESTAD - The government of Aruba continues to mask its homophobic policies behind formal legal arguments. This is reaffirmed in a press release issued by the Wever-Croes cabinet on the eve of the High Court's consideration of the appeal tomorrow.
The government accuses the Court of encroaching on the legislative domain by ruling that excluding same-sex couples from marriage is in violation of Aruba's own prohibition of discrimination. "The decision to open marriage to same-sex individuals is reserved for Aruba's legislature, namely the government and the Parliament collectively," stated the Wever-Croes cabinet.
Same-sex couples in Aruba, as well as in Curaçao, face practical obstacles in their daily lives as they cannot access rights that are taken for granted by married individuals. This makes entering into a lease agreement or obtaining insurance more challenging for them.
Press Release from the Government of Aruba
On November 10, the oral plea will take place at the Supreme Court of the Netherlands in response to the appeal filed by the Land Aruba against the judgment of the Joint Court of Justice of Aruba, Curaçao, Sint Maarten, and Bonaire, Sint Eustatius, and Saba on December 6, 2022. In that judgment, the Joint Court established that in Aruba's legislation, marriage is reserved for individuals of different sexes. According to the Joint Court, on the one hand, the case law of the European Court of Human Rights (ECHR) indicates that this is not a violation of the European Convention on Human Rights (ECHR), but on the other hand, it is in conflict with the general prohibition of discrimination in the Constitution of Aruba. Based on this, the Court formulates an amendment to the legislation in Aruba, allowing marriage not only between two individuals of different sexes but also between two individuals of the same sex.
The government of Aruba is of the opinion that this judgment is not compatible with the constitutional principle of the separation of powers because the court has effectively assumed the role of the legislator. The decision to open marriage to individuals of the same sex is reserved for the legislature of Aruba, meaning the government and the States collectively. The government believes that the court's review of the discrimination prohibition in the Constitution of Aruba cannot extend to deciding how certain parts of the Civil Code of Aruba should be interpreted and applied. Furthermore, the government argues that the court has underestimated the necessary intervention in Aruban legislation by suggesting that only a few provisions of the Civil Code need correction. A full-fledged opening of marriage to individuals of the same sex requires a much more comprehensive legislative operation, involving not only the articles of the Civil Code mentioned by the court but also adjustments to other parts of the Civil Code and various national ordinances and implementing regulations. Without a legal basis, such an adjustment is not possible.
