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 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 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)