Appeal Court allows for same sex marriage in Aruba

Introduction

Under the laws of Aruba, marriage is reserved for a man and a woman. Same sex marriage is excluded. As of September 1st, 2021, same sex couples may enter into a registered partnership (geregistreerd partnerschap), i.e., legally regulated cohabitation that grants to same sex couples the same rights as married couples.

Exclusion of same sex marriage rendered discriminatory by the Appeal Court of the Dutch Caribbean

On December 6th, 2022, the Appeal Court of the Dutch Caribbean rendered a groundbreaking decision in the case Fundacion Orguyo Aruba (et al.) v. Country Aruba (ECLI:NL:OGHACMB:2022:135).

The Appeal Court made good use of its regulatory powers (rechtsvormende taak) by declaring that both opposite and same sex couples may enter into marriage in Aruba.

The Appeal Court assessed the formal laws of Aruba against human rights treaties (ECHR and ICCPR) as well as the Aruba Constitution and concluded that the exclusion of same sex marriage is discriminatory under Article I.1 of the Aruba Constitution. The (clauses in the) formal Aruba laws will be disregarded insofar they exclude same sex marriage.

According to the Appeal Court, there are no valid arguments to justify the exclusion of same sex marriage in Aruba:

• The fact that marriage between a man and a woman is a centuries old tradition in Aruba constitutes no justification for the different treatment of same sex couples.
• The fear that same sex marriages would weaken marriage as an institution is objectively unjustified.
• Marriage offers more protection and stability than a combination of living arrangements consisting of a cohabitation contract (samenlevingscontract), insurance policies and testaments.
• Marriage carries with it a symbolic, emotional and intrinsic value that is denied to same sex couples. Registered partnership as an alternative to same sex marriage is insufficient.
• Religion-based values (and objections against same sex marriage) cannot be imposed upon others in a democratic society.
• The fact that it is biologically impossible for same sex couples to have offspring is not a valid argument against same sex marriage, because marriage is not tied to reproduction.
• The (alleged) fact that most people in Aruba would be against same sex marriage is irrelevant, according to the Appeal Court.

No adoption rights and no descendancy for same sex marriages

According to the Appeal Court, adoption wasn't discussed in the underlying case and should be debated separately, preferably in the Aruba parliament. For said reason, the Appeal Court did not include in its decision the right of couples in same sex marriages to adopt (each other's) children.

Furthermore, descendancy (afstamming) and its legal consequences are also excluded for same sex marriages. From a legal standpoint, a child born in a same sex marriage cannot be considered a descendant of the two women (or men) according to the Appeal Court.

Suspension of the decision pending appeal in cassation

The Aruba Government has 3 months to file an appeal in cassation with the Supreme Court in the Netherlands. Due to the sensitive nature and social importance of the rendered decision, the Appeal Court suspended the legal consequences thereof pending an appeal in cassation by the Aruba government.