Opening Civil Marriage to Same-Gender Couples: A Netherlands-United States Comparison Nancy G. Maxwell Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or othenwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use Abstract This article examines and compares the legal developments in the Netherlands and the United States concerning the right of same-gender couples to marry. These two countries were selected for this comparison because the Netherlands and some states in the United States appear to be on the verge of opening civil marriage to same-gender couples. However, the routes that each country is taking to this same destination have come from completely different directions. For example, in both countries same-gender couples have filed lawsuits seeking to marry. In the 1990s, five different cases were filed in the U.S., and the jud ges in at least three of these cases have been receptive to the petitioners= attempts to obtain marital rights. In the states of Hawaii and Alaska, lower court judges have held that the denial of marriage licenses to same-gender couples is unlawful discrimination in violation of state constitutional provisions; in the state of Vermont, the highest appellate court has ruled that the Vermont Constitution requires same-gender couples be granted the equivalent rights as married opposite-gender couples. Court challenges to the marriage laws in the Netherland however, have been unsuccessful and the dutch judges have been unwilling to find that -gender couples have a right to marry On the other hand, in July of 1999, the Dutch government introduced a bill in the Parliament that would allow same-gender Dutch couples to marry one another in civil ceremonies. Ironically, just the opposite legislative activity is occurring in many of the U.s states. In fact, in Hawaii and Alaska the state legislators and citizens recently passed constitutional amendments to limit marriage to opposite-gender couples, to prevent the court decisions in those states from taking effect This article discusses and compares the contrasting legal developments in the United States and the Netherlands concerning the right of same-gender couples to marry. It does so by discussing the case law and the current legislative activity, first in the Netherlands and then in the United States, dealing with the right of same-gender couples to marry. The next section analyzes and compares the dutch and United States legal histories concerning opening civil marriage to same-gender couples. This section examines how the differences in Professor of Law, Washburn University School of Law, Topeka, Kansas, USA. The author wishes to thank Washbum University School of Law for funding the research of this article through an academic sabbatical; the Molengraaff Institute of Private Law and its faculty sponsor, Ineke de Hondt, Associate Professor of Private Law, Utrecht University, The Netherlands, for welcom ing the author as a visiting scholar, Kees Waaldijk, Lecturer in Law, Leiden University, The Netherlands, for his thoughtful discussions during the research of this article, Caroline Forder, Professor in Private Law, Maastricht University, The Netherlands, for her insightful comments on earlier drafts, and william Petulla, Washburn Law School, Class of 2001 and Gerrit Diederick Maassen, the Molengraaff Institute of Private Law, Class of 2000, for their able research assistance
Opening Civil Marriage to Same-Gender Couples: A Netherlands-United States Comparison Nancy G. Maxwell1 Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use. Abstract This article examines and compares the legal developments in the Netherlands and the United States concerning the right of same-gender couples to marry. These two countries were selected for this comparison because the Netherlands and some states in the United States appear to be on the verge of opening civil marriage to same-gender couples. However, the routes that each country is taking to this same destination have come from completely different directions. For example, in both countries same-gender couples have filed lawsuits seeking to marry. In the 1990s, five different cases were filed in the U.S., and the judges in at least three of these cases have been receptive to the petitioners= attempts to obtain marital rights. In the states of Hawaii and Alaska, lower court judges have held that the denial of marriage licenses to same-gender couples is unlawful discrimination in violation of state constitutional provisions; in the state of Vermont, the highest appellate court has ruled that the Vermont Constitution requires same-gender couples be granted the equivalent rights as married opposite-gender couples. Court challenges to the marriage laws in the Netherlands, however, have been unsuccessful and the Dutch judges have been unwilling to find that same-gender couples have a right to marry. On the other hand, in July of 1999, the Dutch government introduced a bill in the Parliament that would allow same-gender Dutch couples to marry one another in civil ceremonies. Ironically, just the opposite legislative activity is occurring in many of the U.S. states. In fact, in Hawaii and Alaska the state legislators and citizens recently passed constitutional amendments to limit marriage to opposite-gender couples, to prevent the court decisions in those states from taking effect. 1 Professor of Law, Washburn University School of Law, Topeka, Kansas, USA. The author wishes to thank Washburn University School of Law for funding the research of this article through an academic sabbatical; the Molengraaff Institute of Private Law and its faculty sponsor, Ineke de Hondt, Associate Professor of Private Law, Utrecht University, The Netherlands, for welcoming the author as a visiting scholar; Ke es Waaldijk, Lecturer in Law, Leiden University, The Netherlands, for his thoughtful discussions during the research of this article; Caroline Forder, Professor in Private Law, Maastricht University, The Netherlands, for her insightful comments on earlier drafts, and William Petulla, Washburn Law School, Class of 2001 and Gerrit Diederick Maassen, the Molengraaff Institute of Private Law, Class of 2000, for their able research assistance. This article discusses and compares the contrasting legal developments in the United States and the Netherlands concerning the right of same-gender couples to marry. It does so by discussing the case law and the current legislative activity, first in the Netherlands and then in the United States, dealing with the right of same-gender couples to marry. The next section analyzes and compares the Dutch and United States legal histories concerning opening civil marriage to same-gender couples. This section examines how the differences in
the two countries=legal systems, as well as the social status of homosexuals and the leg status of nonmarital cohabitation, have influenced the contrasting routes these two countries have taken toward opening marriages to same-gender couples Contents 1 Introduction 2. Legal developments in the Netherlands 2/ Dutch case lay 2. 1. 1 Challenging prohibitions against marriages of same-gender couples: The 1990s cases 2. 1.2 Challenging prohibitions against marriages of same-gender couples: An analysis of the Dutch case law 2. 2 Dutch legislation 2. 2. 1 Moving toward equality: Registered partnership legislation 2.2.2 Opening civil marriage to same-gender couples: The report of the Kortmann Committee 3. Legal developments in the United States 3. United States case l nwy 3. 1. 1 Challenging prohibitions against marriages of same-gender couples: An overview of the constitutional analyses in the U.Scases 3.1.2 Challenging prohibitions against marriages of interracial couples 3. 1.3 Challenging prohibitions against marriages of same-gender couples: The 1970s cases 3. 1. 4 Challenging prohibitions against marriages of same-gender couples: The 1990s cases 3. 1. 4. I Jurisdictions limiting marriage to opposite-gender couples District of Columbia and New York 3. 1.4.2 Jurisdictions supporting claims of discrimination: Hawai, Alaska, and vermont 3.1.4.3 The Hawaii and Alaska cases: Baehr v Lewin and Brause v Bureau of vital statistics 3.1.4. 4 The Vermont case: Baker v. State of vermont 3.1.5 Challenging prohibitions against marriages of same-gender couples: An analysis of the United States case law 3. 2 United States legislation 3. 2. 1 The United States legislative response to Baehr v. Lewin 3.2.2 The enactment of domestic partnership legislation 4. Comparison and analysis of the Dutch and United States legal histories on opening civil marriage to same-gender couples 4.1 Differences in legal systems 4.2 Differences in the social status of homosexuals 4.3 Differences in the legal status of nonmarital cohabitation Conclusion 1 Introduction This article examines and compares the legal developments in the Netherlands and the United
the two countries= legal systems, as well as the social status of homosexuals and the legal status of nonmarital cohabitation, have influenced the contrasting routes these two countries have taken toward opening marriages to same-gender couples. Contents 1. Introduction 2. Legal developments in the Netherlands 2.1 Dutch case law 2.1.1 Challenging prohibitions against marriages of same-gender couples: The 1990s cases 2.1.2 Challenging prohibitions against marriages of same-gender couples: An analysis of the Dutch case law 2.2 Dutch legislation 2.2.1 Moving toward equality: Registered partnership legislation 2.2.2 Opening civil marriage to same-gender couples: The report of the Kortmann Committee 3. Legal developments in the United States 3.1 United States case law 3.1.1 Challenging prohibitions against marriages of same-gender couples: An overview of the constitutional analyses in the U.S. cases 3.1.2 Challenging prohibitions against marriages of interracial couples 3.1.3 Challenging prohibitions against marriages of same-gender couples: The 1970s cases 3.1.4 Challenging prohibitions against marriages of same-gender couples: The 1990s cases 3.1.4.1 Jurisdictions limiting marriage to opposite-gender couples: District of Columbia and New York 3.1.4.2 Jurisdictions supporting claims of discrimination: Hawaii, Alaska, and Vermont 3.1.4.3 The Hawaii and Alaska cases: Baehr v. Lewin and Brause v. Bureau of Vital Statistics 3.1.4.4 The Vermont case: Baker v. State of Vermont 3.1.5 Challenging prohibitions against marriages of same-gender couples : An analysis of the United States case law 3.2 United States legislation 3.2.1 The United States legislative response to Baehr v. Lewin 3.2.2 The enactment of domestic partnership legislation 4. Comparison and analysis of the Dutch and United States legal histories on opening civil marriage to same-gender couples 4.1 Differences in legal systems 4.2 Differences in the social status of homosexuals 4.3 Differences in the legal status of nonmarital cohabitation 5. Conclusion 1. Introduction This article examines and compares the legal developments in the Netherlands and the United
States concerning the right of same-gender couples to marry. These two countries were selected for this comparison because the Netherlands and some states in the United States appear to be on the verge of opening civil marriage to same-gender couples. However, the routes that each country is taking to this same destination have come from completely different directions. For example, in both countries same-gender couples have filed lawsuits seeking to marry. In the 1990s, five different cases were filed in the U.S., and the jud ges in at least three of these cases have been receptive to the petitioners= attempts to obtain marital rights. In the states of Hawaii and Alaska, lower court judges have held that the denial of marriage licenses to same-gender couples is unlawful discrimination in violation of state constitutional provisions; in the state of Vermont, the highest appellate court has ruled that the vermont Constitution requires same-gender couples be granted the equivalent rights as married opposite-gender couples. Court challenges to the marriage laws in the Netherlands, however, have been unsuccessful and the dutch jud ges have been unwilling to find that ne-gender couples have a right to marry On the other hand, in July of 1999, the Dutch government introduced a bill in the Parliament that would allow same-gender Dutch couples to marry one another in civil ceremonies. Ironically, just the opposite legislative activity is occurring in many of the U.S states. In fact, in Hawaii and Alaska the state legislators and citizens recently passed constitutional amendments to limit marriage to opposite-gender couples, to prevent the court decisions in those states from taking effect. 7 This article discusses and compares the contrasting legal developments in the United States and the Netherlands concerning the right of same-gender couples to marry. It does so by discussing the case law and the current legislative activity, first in the Netherlands and section analyzes and compares the Dutch and United States legal histories concern hext then in the United States, dealing with the right of same-gender couples to marry. The opening civil marriage to same-gender couples. This section examines how the differences in the two countries= legal systems, as well as the social status of homosexuals and the legal status of nonmarital cohabitation, have influenced the contrasting routes these two countries have taken toward opening marriages to same-gender couples Baehr v Milke, 1996WL 694235(Haw. Cir. Ct. Brause v. Bureau of Vital Statistics, 1998 WL 88743(Alaska Super. Ct.) Bakerv.Vermont744A.2d864,1999wl1211709(vt.1999),httplwwwstatevtus/courts/98. 032xt HR 19 oktober 1990, NJ1992, 192, m nt EAAL en EAA (homohuwelijk) rb Amsterdam 13 februari 1990, NJCM-Bulletin 1990, p. 456-460, m nt. K Boele-Woelki en P.C. Tange Wetsvoorstel openstelling huwelijk voor personen van hetzelfde geslacht(Wet openstelling huwelijk), Kamerstukken /1998/99, 26672, nr 1-2. For an English translation of the text of the bill, see the summary translationbyKeesWaaldijk,http:/ruliis.leidenunivnluser/cwaaldii/wwwl(publicationsaboutLawand Homosexuality, Unpublished papers and minor publications) See ALASKA CoNST. Art. I, Sec. 25; see HAW. CONST. Art. 1, Sec. 23. In Alaska, 68 percent of voters voted in favor of upholding traditional marriage as opposed to 32 percent opposing the constitutional amendment By a margin of 69 percent to 29 percent, Hawaii voters upheld a constitutional amendment giving the Legislature >the power to reserve marriage to opposite-sex couples. See Cheryl Wetzstein, Gays Cant Marry, 2 States Say, THE WASHINGTON TIMES, Nov, 5, 1998, atAl6
States concerning the right of same-gender couples to marry. These two countries were selected for this comparison because the Netherlands and some states in the United States appear to be on the verge of opening civil marriage to same-gender couples. However, the routes that each country is taking to this same destination have come from completely different directions. For example, in both countries same-gender couples have filed lawsuits seeking to marry. In the 1990s, five different cases were filed in the U.S., and the judges in at least three of these cases have been receptive to the petitioners= attempts to obtain marital rights. In the states of Hawaii2 and Alaska,3 lower court judges have held that the denial of marriage licenses to same-gender couples is unlawful discrimination in violation of state constitutional provisions; in the state of Vermont,4 the highest appellate court has ruled that the Vermont Constitution requires same-gender couples be granted the equivalent rights as married opposite-gender couples. Court challenges to the marriage laws in the Netherlands, however, have been unsuccessful and the Dutch judges have been unwilling to find that same-gender couples have a right to marry.5 On the other hand, in July of 1999, the Dutch government introduced a bill in the Parliament that would allow same-gender Dutch couples to marry one another in civil ceremonies.6 Ironically, just the opposite legislative activity is occurring in many of the U.S. states. In fact, in Hawaii and Alaska the state legislators and citizens recently passed constitutional amendments to limit marriage to opposite-gender couples, to prevent the court decisions in those states from taking effect.7 2 Baehr v. Miike, 1996 WL 694235 (Haw. Cir. Ct.). 3 Brause v. Bureau of Vital Statistics, 1998 WL 88743 (Alaska Super. Ct.). 4 Baker v. Vermont, 744 A.2d 864, 1999 WL 1211709 (Vt. 1999), http://www.state.vt.us/courts/98- 032.txt 5 HR 19 oktober 1990, NJ 1992, 192, m.nt. EAAL en EAA (homohuwelijk); Rb Amsterdam 13 februari 1990, NJCM-Bulletin 1990, p. 456-460, m.nt. K. Boele-Woelki en P.C. Tange. 6 Wetsvoorstel openstelling huwelijk voor personen van hetzelfde geslacht (Wet openstelling huwelijk), Kamerstukken II 1998/99, 26 672, nr. 1-2. For an English translation of the text of the bill, see the summary translation by Kees Waaldijk, http://ruljis.leidenuniv.nl/user/cwaaldij/www/ (Publications about Law and Homosexuality, Unpublished papers and minor publications). 7 See ALASKA CONST. Art. I, Sec. 25; see HAW. CONST. Art. 1, Sec. 23. In Alaska, 68 percent of voters voted in favor of upholding traditional marriage as opposed to 32 percent opposing the constitutional amendment. By a margin of 69 percent to 29 percent, Hawaii voters upheld a constitutional amendment giving the Legislature >the power to reserve marriage to opposite-sex couples.= See Cheryl Wetzstein, Gays Can't 'Marry,' 2 States Say, THE WASHINGTON TIMES, Nov. 5, 1998, at A16. This article discusses and compares the contrasting legal developments in the United States and the Netherlands concerning the right of same-gender couples to marry. It does so by discussing the case law and the current legislative activity, first in the Netherlands and then in the United States, dealing with the right of same-gender couples to marry. The next section analyzes and compares the Dutch and United States legal histories concerning opening civil marriage to same-gender couples. This section examines how the differences in the two countries= legal systems, as well as the social status of homosexuals and the legal status of nonmarital cohabitation, have influenced the contrasting routes these two countries have taken toward opening marriages to same-gender couples
2. Legal developments in the Netherland 2.1 Dutch case law 2. 1. 1 Challenging prohibitions against marriages of same-gender couples: The 1990s cases In 1990, two Dutch courts were confronted with the issue whether a same-gender couple could marry. The first issue in these cases involved the statutory construction of the marriage statute. Because the marriage statute, Article 30, Book 1 of the Dutch Civil Code(Burgerlijk Wetboek),did not contain gender-specif ic language, the petitioners argued that there was no statutory requirement that the marriage partners must be of opposite genders. The courts, one a district court in Amsterdam, and the other, the highest appellate court of the Netherlands the Supreme Court( Hoge raad), disagreed with the petitioners that the statutory language could be interpreted to allow same-gender individuals to marry one another. The district court of Amster am agreed with the petitioners that the statutory language in article 30, Book 1 did not limit marriage to opposite-gender individuals. However, the court relied on the legislative history of the statute, and found that, at the time the law was enacted, marriage was only possible for persons of opposite genders. Consequently, even though the language of the Code did not limit marriage to opposite-gender individuals, the district court held that it was the legislators= intent to limit marriage to opposite-gender persons when they enacted the marriage laws The decision of the Hoge raad several months later, in October of 1990, was in accordance with the Amsterdam district court=s analysis of the language of Article 30, Book 1. In addressing the petitioners= argument that the statutory language did not prohibit same- gender persons from marrying each other, the Hoge Raad found that this argument was based on a literal interpretation of a number of articles of Book 1, which was an incorrect way of ad ing the statutes given the history of the enactment of Book 1 of the Netherlands Civil Code. The court also stated that, even if developments that later became socially accept were to support the idea that prohibiting same-gender individuals from marrying one another was no longer justified, this change in public opinion would not support a reinterpretation of the Code, >especially as the subject matter relates to public order, and whereby legal certainty Is an important issue =12 Art 1: 30 BW Rb Amsterdam 13 februari 1990, NJCM-Bulletin 1990, p. 456-460, m nt. K. Boele-Woelki en PC HR 19 oktober 1990, NJ1992, 192, m nt EAAL en EAA(homohuwelijk) CivIc For example, same-gendermarriages were considered void ab initio at the time of the enactment of the HR 19 oktober 1990, NJ1992, 192, m nt EAAL en EAA(homohuwelijk; trans. Duck Obbink)
2. Legal developments in the Netherlands 2.1 Dutch case law 2.1.1 Challenging prohibitions against marriages of same-gender couples: The 1990s cases In 1990, two Dutch courts were confronted with the issue whether a same-gender couple could marry. The first issue in these cases involved the statutory construction of the marriage statute. Because the marriage statute, Article 30, Book 1 of the Dutch Civil Code (Burgerlijk Wetboek),8 did not contain gender-specific language, the petitioners argued that there was no statutory requirement that the marriage partners must be of opposite genders. The courts, one a district court in Amsterdam,9 and the other, the highest appellate court of the Netherlands, the Supreme Court (Hoge Raad),10 disagreed with the petitioners that the statutory language could be interpreted to allow same-gender individuals to marry one another. The district court of Amsterdam agreed with the petitioners that the statutory language in Article 30, Book 1 did not limit marriage to opposite-gender individuals. However, the court relied on the legislative history of the statute, and found that, at the time the law was enacted, marriage was only possible for persons of opposite genders. Consequently, even though the language of the Code did not limit marriage to opposite-gender individuals, the district court held that it was the legislators= intent to limit marriage to opposite-gender persons when they enacted the marriage laws. The decision of the Hoge Raad several months later, in October of 1990, was in accordance with the Amsterdam district court=s analysis of the language of Article 30, Book 1. In addressing the petitioners= argument that the statutory language did not prohibit samegender persons from marrying each other, the Hoge Raad found that this argument was based on a literal interpretation of a number of articles of Book 1, which was an incorrect way of reading the statutes given the history of the enactment of Book 1 of the Netherlands Civil Code.11 The court also stated that, even if developments that later became socially accepted were to support the idea that prohibiting same-gender individuals from marrying one another was no longer justified, this change in public opinion would not support a reinterpretation of the Code, >especially as the subject matter relates to public order, and whereby legal certainty is an important issue.= 12 8 Art 1:30 BW. 9 Rb Amsterdam 13 februari 1990, NJCM-Bulletin 1990, p. 456-460, m.nt. K. Boele-Woelki en P.C. Tange. 10 HR 19 oktober 1990, NJ 1992, 192, m.nt. EAAL en EAA (homohuwelijk). 11 For example, same-gender marriages were considered void ab initio at the time of the enactment of the Civil Code. 12 HR 19 oktober 1990, NJ 1992, 192, m.nt. EAAL en EAA (homohuwelijk; trans. Duck Obbink)
The petitioners in both Dutch cases also argued a second issue, viz. that the denial of a marriage license infringed on certain individual rights and violated laws on equal treatment and nondiscrimination. Specifically, the petitioners maintained that the refusal to issue them a marriage license violated Articles 8 and 12 of the European Convention on Human Rights (ECHR) and Article 23 of the International Covenant on Civil and Political Rights (ICCPR), which guarantee the freedom to have a family and the freedom to marry,and Article 14 of the ECHR and Article 26 of the ICCPR, b which prohibit discriminatory behavior. 7 Article 8 1. Everyone has the right to respect for his private and family life, his home and 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others ECHR Art. 8(entered into force Sept. 3, 1953) Article 12 Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right ECHR Art. 12(entered into force Sept 3, 1953) Article 23 The family is the natural and fundamental group unit of society and is entitled to protection by society and the State The right of men and women of marria gea ble age to marry and to found a family shall be No marriage shall be entered into without the free and full consent of the intending spouses States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to mariage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children ICCPR, Dec. 16, 1966, Art. 23, UNTS 171 Article 14 discrim ination on any ground such as sex, race, colour, language, religion, political or other opinion, nationalor social origin, association with a nationalminority, property, birth or other status ECHR Art. 8(entered into force Sept 3, 1953) Article 26 All persons are equal before the law and are entitled without any discrim ination to the equal protection of the law. In this respect, the la w shall prohibit any discrim ination and guarantee to all persons equal and effective protection against discrim ination on any ground such as race, colour, sex, language religion, political or other opinion, nationalor social origin, property, birth or other status ICCPR, Dec 16, 1966, Art. 23, UNTS 171. The petitioners in the Amsterdam district court case also maintained that the registrars treatment refusing to issue them a marriage license- was humiliating and in violation of Article 3 ofthe ECHR, and the petitioners in the Hoge Raad case claimed a violation of Article 2 of the ICCPR. Article 3 of the ECHR states:>No one shall be subjected to. degrading treatment . s and Article 2 of the ICCPR states under Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national
The petitioners in both Dutch cases also argued a second issue, viz. that the denial of a marriage license infringed on certain individual rights and violated laws on equal treatment and nondiscrimination. Specifically, the petitioners maintained that the refusal to issue them a marriage license violated Articles 8 and 12 of the European Convention on Human Rights (ECHR)13 and Article 23 of the International Covenant on Civil and Political Rights (ICCPR),14 which guarantee the freedom to have a family and the freedom to marry, and Article 14 of the ECHR15 and Article 26 of the ICCPR,16 which prohibit discriminatory behavior.17 13 Article 8 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. ECHR Art. 8 (entered into force Sept. 3, 1953). Article 12 Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right. ECHR Art. 12 (entered into force Sept. 3, 1953). 14 Article 23 1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. 2. The right of men and women of marriageable age to marry and to found a family shall be recognized. 3. No marriage shall be entered into without the free and full consent of the intending spouses. 4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children. ICCPR, Dec. 16, 1966, Art. 23, UNTS 171. 15 Article 14 The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other st atus. ECHR Art. 8 (entered into force Sept. 3, 1953). 16 Article 26 All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. ICCPR, Dec. 16, 1966, Art. 23, UNTS 171. 17 The petitioners in the Amsterdam district court case also maintained that the registrar=s treatment - refusing to issue them a marriage license - was humiliating and in violation of Article 3 of the ECHR, and the petitioners in the Hoge Raad case claimed a violation of Article 2 of the ICCPR. Article 3 of the ECHR states: >No one shall be subjected to . . . degrading treatment . . .= and Article 2 of the ICCPR states under section 1: Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national
or social origin, property, birth or other status
or social origin, property, birth or other status
The Amsterdam district court declined to rule on the issue whether the registrar same and opposite-gender couples. In ad dition, the district court noted that granting te eep refusal to issue a marriage license to the petitioners violated international treaties stating that to do so would fall outside the scope of the role of the judiciary. 8 In essence, the district court was saying that it was not up to the judiciary to remedy claims of inequality betw petition, thereby allowing same-gender couples to marry, would have tremendous consequences in society and that this issue was one that should be left to the legislature to solve because there was no need to deal with this issue quickly 9 Consequently, the Amsterdam d istrict court refused to decide the second issue raised in this case. deferring instead to parliament 20 In the second case, however, the Netherlands Supreme Court did address the petitioners= allegations of violations of the Netherlands Constitution and of international law The petitioners first argued that an interpretation of the language in the marriage statute to limit marriage to opposite-gender couples violated Article 1 of the Netherlands Constitution, accept this argument. It held that Article 1 of the Constitution >cannot change_ the which prohibits discrimination on any ground. The Netherlands Supreme Court did legislative intent of the marriage statute which was to limit marriages to opposite -gender 13 februari 1990, NJCM-Bulletin 1990, p. 456-458 The court referred to legal rights granted same-gender couples in Califonia, presumably domestic partnership enactments, and in Denmark, presumably registered pa rtnership legislation Lov om registreret partnerskab, 7juli 1989), as supporting its position that it was the legislative function to find solutions to the issues in this case The annotation that accompanied the amsterdam district court case criticized the court=s refusal to rule on the violations of the treaties because there was a case precedent in 1989 in an intermediate appellate court the Hof Den Haag, which held that the refusal to issue a marriage license to a same-gender couple did ne violate these provisions of the treaties. Hof Den Haag2 juni 1989, NJ1989, 871. (It was this case in the Hof Den Haag that was eventually referred to the Hoge raad, which is also being discussed in this section of the article. HR 19 oktober 1990, NJ1992, 192). In addition, the annotation states that the court should have ruled on the issue of treaty violations because treaty provisions take precedence over any domestic laws that might be incompatible with treaty provisions. Finally, the annotation mentioned tha t it was also surprising that the court did not rule on the issue of the possible violation of those particulartreaty provisions that could be enforced directly by the petitioners. Rb Amsterdam 13 februar 1990, NJCM-Bulletin 1990, p. 456-460, m nt. K. Boele- Woelki en P C. Tange HR 19 oktober 1990, NJ1992, 192, m nt EAAL en EAa(homohuwelijk; trans. Duck Obbink)
The Amsterdam district court declined to rule on the issue whether the registrar=s refusal to issue a marriage license to the petitioners violated international treaties stating that to do so would fall outside the scope of the role of the judiciary.18 In essence, the district court was saying that it was not up to the judiciary to remedy claims of inequality between same and opposite-gender couples. In addition, the district court noted that granting the petition, thereby allowing same-gender couples to marry, would have tremendous consequences in society and that this issue was one that should be left to the legislature to solve because there was no need to deal with this issue quickly.19 Consequently, the Amsterdam district court refused to decide the second issue raised in this case, deferring instead to Parliament.20 In the second case, however, the Netherlands Supreme Court did address the petitioners= allegations of violations of the Netherlands Constitution and of international law. The petitioners first argued that an interpretation of the language in the marriage statute to limit marriage to opposite-gender couples violated Article 1 of the Netherlands Constitution, which prohibits discrimination on any ground. The Netherlands Supreme Court did not accept this argument. It held that Article 1 of the Constitution >cannot change= 21 the legislative intent of the marriage statute, which was to limit marriages to opposite-gender couples. 18 13 februari 1990, NJCM-Bulletin 1990, p. 456-458. 19 The court referred to legal rights granted same-gender couples in California, presumably domestic partnership enactments, and in Denmark, presumably registered pa rtnership legislation (Lov om registreret partnerskab, 7 juli 1989), as supporting its position that it was the legislative function to find solutions to the issues in this case. 20 The annotation that accompanied the Amsterdam district court case criticized the court=s refusal to rule on the violations of the treaties because there was a case precedent in 1989 in an intermediate appellate court, the Hof Den Haag, which held that the refusal to issue a marriage license to a same-gender couple did not violate these provisions of the treaties. Hof Den Haag 2 juni 1989, NJ 1989, 871. (It was this case in the Hof Den Haag that was eventually referred to the Hoge Raad, which is also being discussed in this section of the article. HR 19 oktober 1990, NJ 1992, 192). In addition, the annotation states that the court should have ruled on the issue of treaty violations because treaty provisions take precedence over any domestic laws that might be incompatible with treaty provisions. Finally, the annotation mentioned tha t it was also surprising that the court did not rule on the issue of the possible violation of those particular treaty provisions that could be enforced directly by the petitioners. Rb Amsterdam 13 februari 1990, NJCM-Bulletin 1990, p. 456-460, m.nt. K. BoeleWoelki en P.C. Tange. 21 HR 19 oktober 1990, NJ 1992, 192, m.nt. EAAL en EAA (homohuwelijk; trans. Duck Obbink)
Next, the petitioners claimed that limiting marriage to opposite-gender cou violated Articles 8 and 12 of the ECHR and Article 23 of the ICCPR, which guarantee the freedom to have a family and the freedom to marry. The Hoge Raad, however, referred to two decisions of the European Court of Human Rights involving transgendered individuals who were seeking the right to marry. 22 In these decisions, the European Court held that Article 12 of the EChR refers to the >traditional concept of marriage. =23 Thus, the hoge Raad found that it was bound by this precedent and was not in a position to interpret Article 12 more broadly than the European Court of Human Rights. 24 Given this interpretation of the right to marry under Article 12 of the ECHR, the Netherlands Supreme Court also stated that it should be assumed that Article 23 of the ICCPr also referred to the >trad itional marriage involving persons of opposite sexes. =25 In addition, the petitioners= claim that a refusal to allow same-gender couples to marry interfered with one=s private and/or family life, as stated in Article 8 of the ECHR, was rejected by the Hoge Raad because of its interpretation of the term >marriage= in Article 12. Consequently, there had been no >interference by a public authority with the exercise of this right= as provided in article 8.26 Because the Hoge Raad defined marriage in Article 12 of the ECHR and Article 23 of the ICCPR as meaning >traditional marriage involving persons of opposite sexes, =it found there was no claim under the nondiscrimination provisions of Article 14 of the ECHR and Article 2 of the ICCPR that the petitioners were being denied their right to marry a person of the same gender, because that right was limited by the definition of marriage, which only applied to persons of opposite genders Finally, the Netherlands Supreme Court examined whether there had been a violation of Article 26 of the ICCPR, which contains a broader nondiscrimination, equal protection provision than Article 2 of the same treaty. In its opinion, however, this was >not the case The opinion continued as follows Civil marriage is since time immemorial understood to be an enduring bond between a man and a woman to which a number of legal consequences are attached, which partly relate to the difference in x and the consequences connected therewith for the descent of children. Marriage has these characteristics not only in the netherlands but in many countries moreover, it cannot be said that the general opinion in the legal community has developed such that the considerations just mentioned de not justify the distinction in treatment on the grounds of sexualorientation, which can manifest itself in the impossibility to enter a relationship-like marriage with a person of the same sex as oneself. However, the Supreme Court=s decision d id recognize the >possibility= that other benefits of Rees v United Kingdom, Eur. Court H.R., judgment 17 October 1986, Series A no 106, 33-51; NJ 1987,945,m.nt.e.a.Alkema,http://www.dhcour.coe.fr/hudoCldoc/hejud/sift/149.txt;Cosseyv.United Kingdom, Eur. Court. H.R., judgment 27 September 1990 Series A no 184, 30-48, Martens J dissent Cossey v United Kingdom, Eur. Court. H.R. 27 Septem ber 1990 Series A vol. 184 >Since this Court [ the European Court of Human Rights] clearly esta blished the scope of Article 12 recently, the Hoge Raad has not found any freedom for a more liberal interpretation of the prov isions of th treaty. HR 19 oktober 1990, NJ1992, 192, m nt EAAL en EAA(homohuwelijk; trans. Duck Obbink) Art 8 ECHR. HR 19 oktober 1990, NJ1992, 192, m nt EAAL en EAA(homohuwelijk; trans. Caroline Forder
Next, the petitioners claimed that limiting marriage to opposite-gender couples violated Articles 8 and 12 of the ECHR and Article 23 of the ICCPR, which guarantee the freedom to have a family and the freedom to marry. The Hoge Raad, however, referred to two decisions of the European Court of Human Rights involving transgendered individuals who were seeking the right to marry.22 In these decisions, the European Court held that Article 12 of the ECHR refers to the >traditional concept of marriage.= 23 Thus, the Hoge Raad found that it was bound by this precedent and was not in a position to interpret Article 12 more broadly than the European Court of Human Rights.24 Given this interpretation of the right to marry under Article 12 of the ECHR, the Netherlands Supreme Court also stated that it should be assumed that Article 23 of the ICCPR also referred to the >traditional marriage involving persons of opposite sexes.= 25 In addition, the petitioners= claim that a refusal to allow same-gender couples to marry interfered with one=s private and/or family life, as stated in Article 8 of the ECHR, was rejected by the Hoge Raad because of its interpretation of the term >marriage= in Article 12. Consequently, there had been no >interference by a public authority with the exercise of this right= as provided in Article 8.26 Because the Hoge Raad defined marriage in Article 12 of the ECHR and Article 23 of the ICCPR as meaning >traditional marriage involving persons of opposite sexes,= it found there was no claim under the nondiscrimination provisions of Article 14 of the ECHR and Article 2 of the ICCPR that the petitioners were being denied their right to marry a person of the same gender, because that right was limited by the definition of marriage, which only applied to persons of opposite genders. Finally, the Netherlands Supreme Court examined whether there had been a violation of Article 26 of the ICCPR, which contains a broader nondiscrimination, equal protection, provision than Article 2 of the same treaty. In its opinion, however, this was >not the case.= The opinion continued as follows: Civil marriage is since time immemorial understood to be an enduring bond between a man and a woman to which a number of legal consequences are attached, which partly relate to the difference in sex and the consequences connected therewith for the descent of children. Marriage has these characteristics not only in the Netherlands but in many countries. Moreover, it cannot be said that the general opinion in the legal community has developed such tha t the considerations just mentioned do not justify the distinction in treatment on the grounds of sexual orientation, which can manifest itself in the impossibility to enter a relationship-like marriage with a person of the same sex as oneself.27 However, the Supreme Court=s decision did recognize the >possibility= that other benefits of 22 Rees v. United Kingdom, Eur. Court H.R., judgment 17 October 1986, Series A no. 106, '' 33-51; NJ 1987, 945, m.nt. E.A. Alkema, http://www.dhcour.coe.fr/Hudoc1doc/HEJUD/sift/149.txt; Cossey v. United Kingdom, Eur. Court. H.R., judgment 27 September 1990 Series A no. 184, '' 30-48, Martens J.dissent., http://www.dhcour.coe.fr/Hudoc1doc/HEJUD/sift/226.txt 23 Cossey v. United Kingdom, Eur. Court. H.R. 27 September 1990 Series A vol. 184. 24 >Since this Court [the European Court of Human Rights] clearly established the scope of Article 12 recently, the Hoge Raad has not found any freedom for a more liberal interpretation of the provisions of the treaty.= HR 19 oktober 1990, NJ 1992, 192, m.nt. EAAL en EAA (homohuwelijk; trans. Duck Obbink). 25 Id. 26 Art. 8, ECHR. 27 HR 19 oktober 1990, NJ 1992, 192, m.nt. EAAL en EAA (homohuwelijk; trans. Caroline Forder)
marriage denied to same-gender couples may not be justifiable, therefore inferring that it may be discriminatory to deny these other benefits to same-gender couples. The Hoge Raad stated, legislature-was not raised in these proceed ings p could only be addressed by the though, that a >question of this kind- which anyway 2. 1. 2 Challenging prohibitions against marriages of same-gender couples: An analysis of the Dutch case law The Dutch cases set out the two main arguments that have been made in both the United States and in the Netherlands when same-gendered couples sued for the right to marry. The first argument was one of statutory construction. Because the text in the marriage statutes does not state specifically that marriage only involves a man and a woman, the petitioners asserted that they should be issued a marriage license. However, this argument was not successful in any of the cases, because, as the Dutch courts pointed out, the lawmakers assumed, when they enacted the statutes, that marriages would involve only opposite-gender ndividuals The second argument that was made in these cases was that if marriage is limited to opposite-gender couples, then the marriage statutes violate certain rights found in constitutions or, in the Dutch cases, in international treaties. The most prominent rights asserted were the right to marry and the right to have a family, as well as provisions against Inequal treatment. The Dutch cases are examples of one of two possible directions the courts ould take within the context of this second argument - either the courts could the >separation of powers= analysis and thereby refuse to deal with the arguments or the courts could determine whether limiting marriage to opposite-gender couples was a violation of human rights principles. The Dutch district court took the first direction; it refused to analyze the human rights claims by stating that the inclusion of same-gender couples in the institution of marriage was a legislative, not a judicial question. Consequently, the court deferred to the legislature to deal with this issue. In the second case, however, the Netherlands Supreme Court did address the arguments, but the analysis seemed to be a repetition of the previous rationale found in the statutory interpretation issue. The Supreme Court determined that the rights protected in the treaties were limited by the >trad itional definition of marriage. In other words, there was no discrimination nor denial of human rights because the treaty provisions were drafted to protect only those individuals who fit into that trad itional definition of marriage and family life, i.e., opposite-gender couples. Therefore, the Netherlands Supreme Court did not go beyond this argument to ask the more probating questions of whether marriage was, in fact, much more than merely a method of regi procreation and the legitimation of children
marriage denied to same-gender couples may not be justifiable, therefore inferring that it may be discriminatory to deny these other benefits to same-gender couples. The Hoge Raad stated, though, that a >question of this kind - which anyway could only be addressed by the legislature - was not raised in these proceedings.= 28 2.1.2 Challenging prohibitions against marriages of same-gender couples: An analysis of the Dutch case law 28 Id. The Dutch cases set out the two main arguments that have been made in both the United States and in the Netherlands when same-gendered couples sued for the right to marry. The first argument was one of statutory construction. Because the text in the marriage statutes does not state specifically that marriage only involves a man and a woman, the petitioners asserted that they should be issued a marriage license. However, this argument was not successful in any of the cases, because, as the Dutch courts pointed out, the lawmakers assumed, when they enacted the statutes, that marriages would involve only opposite-gender individuals. The second argument that was made in these cases was that, if marriage is limited to opposite-gender couples, then the marriage statutes violate certain rights found in constitutions or, in the Dutch cases, in international treaties. The most prominent rights asserted were the right to marry and the right to have a family, as well as provisions against unequal treatment. The Dutch cases are examples of one of two possible directions the courts could take within the context of this second argument - either the courts could raise the >separation of powers= analysis and thereby refuse to deal with the arguments or the courts could determine whether limiting marriage to opposite-gender couples was a violation of human rights principles. The Dutch district court took the first direction; it refused to analyze the human rights claims by stating that the inclusion of same-gender couples in the institution of marriage was a legislative, not a judicial question. Consequently, the court deferred to the legislature to deal with this issue. In the second case, however, the Netherlands Supreme Court did address the arguments, but the analysis seemed to be a repetition of the previous rationale found in the statutory interpretation issue. The Supreme Court determined that the rights protected in the treaties were limited by the >traditional= definition of marriage. In other words, there was no discrimination nor denial of human rights because the treaty provisions were drafted to protect only those individuals who fit into that traditional definition of marriage and family life, i.e., opposite-gender couples. Therefore, the Netherlands Supreme Court did not go beyond this argument to ask the more probing questions of whether marriage was, in fact, much more than merely a method of regulating procreation and the legitimation of children
In defense of the Netherlands Supreme Court, however, this restrained approach was not unexpected, given the prior decisions of the European Court of Human Rights concerning the right of transgendered individuals to marry. Also, it would have been inappropriate for the Netherlands Supreme Court to give a much more liberal interpretation to the provisions of the international treaties, an interpretation that would be unanticipated by, and unacceptable to, the other signatories of the treaties. In fact, the Netherlands Supreme Court did acknowledge that discrimination arguments may become more relevant when examining the benefits opposite-gender couples acquire through marriage. The Supreme Court understood that the inability of same-gender couples to marry prevented them from receiving these benefits. On the other hand, however, the Supreme Court declined to investigate this more expansive view of the marriage relationship, and again relied on the separation of powers analysis, stating that this was an issue for the legislature. In doing so, the Netherlands Supreme Court did not take the opportunity to instruct the legislature to remedy this >possibility= of inequality, as it had in some other family law cases. 2 2.2 Dutch legislation 2. 2. 1 Moving toward equality: Registered partnership legislation 29 For example, the Netherlands Supreme Court instructed the Parliament to remedy the unequal treatment involv ing the exercise of joint parentalauthority, beca use the legislation was not treating divorced and unmarried parents the same as married parents. See hr 4 mei 1984, NJ1985, 510, involv ing the unequa treatment of divorced parents and HR21 maart 1986, NJ1986, 585, involving unmarried parents
In defense of the Netherlands Supreme Court, however, this restrained approach was not unexpected, given the prior decisions of the European Court of Human Rights concerning the right of transgendered individuals to marry. Also, it would have been inappropriate for the Netherlands Supreme Court to give a much more liberal interpretation to the provisions of the international treaties, an interpretation that would be unanticipated by, and unacceptable to, the other signatories of the treaties. In fact, the Netherlands Supreme Court did acknowledge that discrimination arguments may become more relevant when examining the benefits opposite-gender couples acquire through marriage. The Supreme Court understood that the inability of same-gender couples to marry prevented them from receiving these benefits. On the other hand, however, the Supreme Court declined to investigate this more expansive view of the marriage relationship, and again relied on the separation of powers analysis, stating that this was an issue for the legislature. In doing so, the Netherlands Supreme Court did not take the opportunity to instruct the legislature to remedy this >possibility= of inequality, as it had in some other family law cases.29 2.2 Dutch legislation 2.2.1 Moving toward equality: Registered partnership legislation 29 For example, the Netherlands Supreme Court instructed the Parliament to remedy the unequal treatment involving the exercise of joint parental authority, because the legislation was not treating divorced and unmarried parents the same as married parents. See HR 4 mei 1984, NJ 1985, 510, involving the unequal treatment of divorced parents and HR 21 maart 1986, NJ 1986, 585, involving unmarried parents
