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