THE HAGUE - "I am only allowed to marry a man in Curaçao, but I am in love with a woman." Danika Marquez made this emotional statement at the end of an oral cassation hearing at the Supreme Court in The Hague. Direct stakeholders were also allowed to give testimony.
The legal battle of human rights organizations in Aruba and Curaçao and of same-sex couples on both islands to be allowed to marry has entered its final phase. The Supreme Court will now assess whether the judges in Willemstad correctly ruled at the end of last year.
Human rights organizations critical
On April 1, 2001, the Netherlands opened civil marriage to same-sex partners. Since October 10, 2012, this also applies to the islands of Bonaire, Saba, and Sint Eustatius, which together form Caribbean Netherlands and are under direct Dutch jurisdiction. The three other islands in the kingdom - Sint Maarten, Aruba, and Curaçao - are autonomous and, in principle, have control over their own legislation and judiciary.
Curaçao and Aruba have a provision in the civil code stating that marriage can only be entered into between a man and a woman. According to human rights organizations, this is in violation of provisions in the constitution, the equivalent of the islands' constitution. Twice, the judges in Willemstad agreed with this. First at the trial level and later in the court of appeal.
Moreover, the court in Willemstad stated that new legislation was not necessary: the prohibition of discrimination in the constitution means that the civil registrar of Aruba and Curaçao must cooperate in solemnizing a marriage between two people of the same sex by preparing a marriage declaration and a marriage certificate.
Melinda Angel (l) and Danika Marquez in court
The resistance from politics and the church on both islands erupted again with great intensity after this verdict. With almost the same biblical and cultural arguments as before. However, religious beliefs should no longer play a role according to the judges. In a democratic constitutional state, freedom of religion does not extend to imposing one's own religious norms and values on others, the court stated.
Politicians and church leaders on the islands argued that the European Court of Human Rights had also said that same-sex marriage is not necessarily required and that it does not constitute discrimination. But in the same judgment, the European Court also ruled that if countries do not open marriage to same-sex partners, they are obligated to provide an alternative, such as a legally recognized registered partnership.
‘Court on the legislator’s chair’
Aruba took action on this and now has a partnership arrangement, although it does not provide the same rights as marriage. During the last day's hearing, it became clear that Aruba has less objection than Curaçao when it comes to opening marriage to same-sex couples. The pain lies in the path to get there.
Both countries believe that the court of appeal has taken on the role of the legislator by determining that a legislative change is not necessary to compel a civil registrar to cooperate in solemnizing a marriage between two people of the same sex. It is this legal view that the Supreme Court must respond to.
On January 19, the written advice from the Attorney General of the Supreme Court will be presented, clarifying the path the Supreme Court will take in this case. The verdict will follow at the end of February or early March.