litigation in the Dutch courts, a new strategy was developed involving the power of sh Because same-gender couples were not successful in obtaining marriage licenses throu municipalities to maintain >registers. Dutch law permits municipalities to maintain an unlimited number of registers; consequently, same-gender couples began to request that their relationships be registered under a new municipal register, referred to as the >marriage register. =In 1991, the first same-gender relationship was registered in the town of Deventer, and within a few years over 130 municipalities were registering same-gender couples= lationships. Although these registrations had no legal status, the willingness of the municipalities to provide these registers carried great political and symbolic significance In other European countries, political developments concerning the recognition of same-gender relationships also took place during the same period. In 1989, Denmark became the first country to enact legislation creating the institution of >registered partnerships. In ship laws allow same-gender couples almost all the benefits that heterosexual couples obtain through marriage. More countries followed Denmark=s lead, and by 1996 Norway, Sweden, Greenland, and Iceland also had enacted registered partnership The Netherlands was not far behind-in 1992, the dutch government=s Commiss voor de toetsing van wetgevingsprojecten(Advisory Commission for Legislation) issued report recommending the ad option of registered partnership legislation similar to the Danish laws and, in 1994, a partnership bill was submitted to Parliament. Persons who are unable to marry because of a legal disability were to be allowed to register their partnership. This cluded not only same-gender couples, but also couples within prohibited degrees of relationship. Nonmarried, nonregistered adults were to be allowed to register 30 The History of the Opening to Civil Marriages to Gays and Lesbians, DE REGENBOOGGIDS 1998/99,28-30(trans. Greg Coppoletta and Labi Siffre) 31 >Dutch gay couples can register their partnerships with local authorit ies, but recognition of such marriage contracts by third parties such as insurance companies cannot currently be enforced by law Committee Looks into Legalizing Same-Sex Marriages, Reuter, May 28, 1996 The registration would also be lim ited to Dutch nationals and European Union citizens who are lawful residents of the Netherlands, or altematively, those seeking registration had to have been lawful residents of the under this bill would have been the same as those of mariage, in most respects, except if ths rest partnershi Netherlands for at least a year prior to their request for registration. The consequences of registered would not change the status of any children ofeither registered partner, who might be living with the couple Con prevented by intemationalor EU law. One other majorexception involved the status of children; the registra See Caroline Forder, The Netherlands, An ldentity Crisis: The Outer Limits of Euthanasia, the Abolition of Chivalry and Other Adventurous Provisions, in: A Bainhaim, ed, THE INTERNATIONAL SURVEY OF FAMILY LAW 1994(The Hague: Martinus Nijhoff, 1996), 361-62
Because same-gender couples were not successful in obtaining marriage licenses through litigation in the Dutch courts, a new strategy was developed involving the power of municipalities to maintain >registers.= Dutch law permits municipalities to maintain an unlimited number of registers; consequently, same-gender couples began to request that their relationships be registered under a new municipal register, referred to as the >marriage register.= In 1991, the first same-gender relationship was registered in the town of Deventer, and within a few years over 130 municipalities were registering same-gender couples= relationships.30 Although these registrations had no legal status,31 the willingness of the municipalities to provide these registers carried great political and symbolic significance. In other European countries, political developments concerning the recognition of same-gender relationships also took place during the same period. In 1989, Denmark became the first country to enact legislation creating the institution of >registered partnerships.= In general, registered partnership laws allow same-gender couples almost all the benefits that heterosexual couples obtain through marriage. More countries followed Denmark=s lead, and by 1996 Norway, Sweden, Greenland, and Iceland also had enacted registered partnership legislation. The Netherlands was not far behind - in 1992, the Dutch government=s Commissie voor de toetsing van wetgevingsprojecten (Advisory Commission for Legislation) issued a report recommending the adoption of registered partnership legislation similar to the Danish laws and, in 1994, a partnership bill was submitted to Parliament. Persons who are unable to marry because of a legal disability were to be allowed to register their partnership. This included not only same-gender couples, but also couples within prohibited degrees of relationship. Nonmarried, nonregistered adults were to be allowed to register.32 30 The History of the Opening to Civil Marriages to Gays and Lesbians, DE REGENBOOGGIDS 1998/99, 28-30 (trans. Greg Coppoletta and Labi Siffre). 31 >Dutch gay couples can register their partnerships with local authorities, but recognition of such marriage contracts by third parties such as insurance companies cannot currently be enforced by law.= Committee Looks into Legalizing Same-Sex Marriages, Reuter, May 28, 1996, http://www.coc.nl/index.html?file=marriage_07 32 The registration would also be limited to Dutch nationals and European Union citizens who are lawful residents of the Netherlands, or alternatively, those seeking registration had to have been lawful residents of the Netherlands for at least a year prior to their request for registration. The consequences of registered partnership under this bill would have been the same as those of marriage, in most respects, except if this result was prevented by international or EU law. One other major exception involved the status of children; the registration would not change the status of any children of either registered partner, who might be living with the couple. See Caroline Forder, The Netherlands, An Identity Crisis: The Outer Limits of Euthanasia, the Abolition of Chivalry and Other Adventurous Provisions, in: A. Bainhaim, ed., THE INTERNATIONAL SURVEY OF FAMILY LAW 1994 (The Hague: Martinus Nijhoff, 1996), 361-62
that the Dutch people were not ready for equal marital rights for same-gender couples, ed The bill stalled in the Parliament, however, in part because the government belie However, a public opinion poll in the summer of 1995 refuted this belief. When asked >Do you think that gays and lesbians who so wish should legally be allowed to marry, just like heterosexual couples?, seventy-three percent answered >Yes. The poll=s next question concerned the way in which this should be accomplished the answer that received the highest percentage 4 was the one that proposed including gay and lesbian couples in the existing civil marriage laws, as opposed to creating a parallel system such as registered In September of 1995, the government published a memorandum that proposed amendments to the registered partnerships bill. The most controversial proposal was to open partnership registration to opposite-gender couples. Consequently, unlike the Scandinavian legislation on registered partnership, which limited registration to same-gender couples, the Dutch government=s proposal created a dual system for heterosexual couples, who could choose between traditional marriage and registered partnership. At the same time, the government decided that there was not enough interest from the side of persons within prohibited degrees of relationship to enter into registered partnerships, so instead of allowi this group to become registered partners, these individuals were excluded from forming registered partnership, just like in marriage >Justice Minister Elizabeth Schmitz has in the past rejected opening civil maria ge to homosexual children.= Committee Looks into Legalizing Same-Sex Marriages, Reuter, May 28, 99 tions of foreign le=marriage 07 In 1995, this was 44 percent; currently it is over 50 percent of those polled Kamerstukken /1994/95, 22700, nr 5, legislative proposal(family forms). This memorandum also proposed amendments to inheritance and adoption laws as well. See Caroline Forder, The Netherlands: Re- thinking Marriage, Parenthood and Adoption, in: A Bainhaim, ed, THE INTERNATIONAL SURVEY OF FAMILY LAW 1995(The Hague: Martinus Nijhoff, 1997), 360-61
The bill stalled in the Parliament, however, in part because the government believed that the Dutch people were not ready for equal marital rights for same-gender couples.33 However, a public opinion poll in the summer of 1995 refuted this belief. When asked >Do you think that gays and lesbians who so wish should legally be allowed to marry, just like heterosexual couples?,= seventy-three percent answered >Yes.= The poll=s next question concerned the way in which this should be accomplished; the answer that received the highest percentage34 was the one that proposed including gay and lesbian couples in the existing civil marriage laws, as opposed to creating a parallel system such as registered partnership. In September of 1995, the government published a memorandum that proposed amendments to the registered partnerships bill.35 The most controversial proposal was to open partnership registration to opposite-gender couples. Consequently, unlike the Scandinavian legislation on registered partnership, which limited registration to same-gender couples, the Dutch government=s proposal created a dual system for heterosexual couples, who could choose between traditional marriage and registered partnership. At the same time, the government decided that there was not enough interest from the side of persons within prohibited degrees of relationship to enter into registered partnerships, so instead of allowing this group to become registered partners, these individuals were excluded from forming registered partnership, just like in marriage. 33 >Justice Minister Elizabeth Schmitz has in the past rejected opening civil marriage to homosexual couples as going too far, arguing it could rouse international ire and jeopardize Dutch adoptions of foreign children.= Committee Looks into Legalizing Same-Sex Marriages, Reuter, May 28, 1996, http://www.coc.nl/index.html?file=marriage_07 34 In 1995, this was 44 percent; currently it is over 50 percent of those polled. 35 Kamerstukken II 1994/95, 22 700, nr. 5, legislative proposal (family forms). This memorandum also proposed amendments to inheritance and adoption laws as well. See Caroline Forder, The Netherlands: Rethinking Marriage, Parenthood and Adoption, in: A. Bainhaim, ed., THE INTERNATIONAL SURVEY OF FAMILY LAW 1995 (The Hague: Martinus Nijhoff, 1997), 360-61
The House of Representatives, however, was not content with merely offering registered partnerships to same-gender couples and continued to push for includ ing these couples within the marriage laws. In April of 1996, members of the House of Representatives passed a resolution demanding that civil marriage laws include same-gender couples, by a vote of eighty-one to sixty 36 The Dutch Cabinet, however, remained opposed to openin civil marriage to same-gender couples if the marriage of two same-gender persons carried with it the presumptions of parentage for children born into these marriages. If marriage resulted in automatic parentage of same-gender partners, the Cabinet members feared these marriages would not be granted legal recognition in other countries. In add ition, if married same-gender couples were granted all of the same rights as married opposite-gender couples, position was that this consequence would discourage foreign countries from placing ther u ld be able to adopt children together 37The dutch Cabinet children for adoption in the Netherlands. 3 Because the majority of Dutch adoptions involve foreign-born children, if this fear was justified, there would be little opportunity fo heterosexual Dutch couples to adopt children. Because of the government=s reluctance, and the continued insistence by the majority of members of the house of representatives to have a law allowing same-gender couples to marry, the Ministry of Justice appointed a committee to study this issue and to report its findings to the government often in our society two people of different sexes and of the same sex want to enter into a lasting and ommitted relationship; noting furthermore that accord ing to the Civil Code the concluding of a civil marriage is permitted to two people of different sexes; being of the opinion that in line with the General Equal Treatment Act there is no objective justification for the marriage prohibition for same-sex couples resolves, that the legal marriage prohibition for two people of the same sex be lifted; requests the government to em bark as soon as possible on the preparation of legislation to this effect, taking inte ccount the intemational aspects, especially in a European context; and also requests the govemment because of the width of substance of the aforementioned preparation, to appoint a non-departmental commission in which different relevant disciplines will be represented, and to instruct it to complete a pre-draft of a bill on this matter before I August 1997 Kamerstukken 111995/96, 22700, nr 18 (replacing 22 700, nr. 9), proposed by Ms Van der Burg(labor)and Mr Dittrich(democrats), adopted on April, 16, 1996(81 votes in favor, 60 aga inst; see Handelingen /1995/96,pp 4883-4884) Dutch Parliament Demands Legislation to Open up Marriage and Adoption for Same-Sex Couples, ResolutiononSame-sexMarriagesApri17,1996,http://www.coc.nl/index.htmi?file=mArriage08 See Forder, supra note 35 NRC Handelsblad. March 26. 1996. at5.7.9 See infra 2.2.2
The House of Representatives, however, was not content with merely offering registered partnerships to same-gender couples and continued to push for including these couples within the marriage laws. In April of 1996, members of the House of Representatives passed a resolution demanding that civil marriage laws include same-gender couples, by a vote of eighty-one to sixty.36 The Dutch Cabinet, however, remained opposed to opening civil marriage to same-gender couples if the marriage of two same-gender persons carried with it the presumptions of parentage for children born into these marriages. If marriage resulted in automatic parentage of same-gender partners, the Cabinet members feared these marriages would not be granted legal recognition in other countries. In addition, if married same-gender couples were granted all of the same rights as married opposite-gender couples, then same-gender couples would be able to adopt children together.37 The Dutch Cabinet=s position was that this consequence would discourage foreign countries from placing their children for adoption in the Netherlands.38 Because the majority of Dutch adoptions involve foreign-born children, if this fear was justified, there would be little opportunity for heterosexual Dutch couples to adopt children. Because of the government=s reluctance, and the continued insistence by the majority of members of the House of Representatives to have a law allowing same-gender couples to marry, the Ministry of Justice appointed a committee39 to study this issue and to report its findings to the government. 36 The Chamber, having heard the debate, noting that often in our society two people of different sexes and of the same sex want to enter into a lasting and committed relationship; noting furthermore that according to the Civil Code the concluding of a civil marriage is permitted to two people of different sexes; being of the opinion that in line with the General Equal Treatment Act there is no objective justification for the marriage prohibition for same -sex couples resolves, that the legal marriage prohibition for two people of the same sex be lifted; requests the government to embark as soon as possible on the preparation of legislation to this effect, taking into account the international aspects, especially in a European context; and also requests the government, because of the width of substance of the aforementioned preparation, to appoint a non -departmental commission in which different relevant disciplines will be represented, and to instruct it to complete a pre-draft of a bill on this matter before 1 August 1997. Kamerstukken II 1995/96, 22 700, nr. 18 (replacing 22 700, nr. 9); proposed by Ms Van der Burg (labor) and Mr Dittrich (democrats); adopted on April, 16, 1996 (81 votes in favor, 60 against; see Handelingen II 1995/96, pp. 4883-4884); Dutch Parliament Demands Legislation to Open up Marriage and Adoption for Same-Sex Couples, Resolution on Same-Sex Marriages, April 17, 1996, http://www.coc.nl/index.html?file=marriage_08 37 See Forder, supra note 35. 38 NRC Handelsblad, March 26, 1996, at 5, 7, 9. 39 See infra '2.2.2
Meanwhile, it appeared that both houses were ready to enact the registered partnership bill and, eventually in 1997, Parliament approved two separate acts* amending the Netherlands Civil Code and more than one hundred other statutes, establishing a system of registered partnerships for both homosexual and heterosexual couples. According to the new laws, persons registering their partnerships are to obtain almost all the legal rights that accrue to a heterosexual marriage. However, there are several notable exceptions. For example, the law only applies to Dutch citizens or foreigners who are residents of the Netherlands. 4 Also, registered partnerships can be ended without seeking the permission of a court, whereas marriages must be terminated through court proceedings. *In addition, the new laws do not affect the legal status of each of the partner=s children; persons in registered partnerships do not even have joint parental authority over each other=s children. Another difference is that homosexuals cannot adopt their partners= children, whereas later legislation permits unmarried heterosexual couples to adopt each other=s children. The Dutch government appears to have recognized this inconsistency in the new adoption law, because it has introduced a bill to the dutch Parliament allowing same-gender couples to adopt children together 46 2. 2. 2 Opening civil marriage to same-gender couples: The report of the Kortmann Committee In October 1997, the committee that the ministry of Justice appointed to study the question of opening up civil marriage- Commissie inzake openstelling van het burgerljik hunvelijik voor Wet van 5 juli 1997, Stb. 1997, 324; Wet van 17 December 1997, Stb. 1998, 600 Allowing heterosexual couples the option of entering into a marriage or a registered partnership ha been criticized by many Dutch academics. See Caroline Forder, The Netherlands, An Undutchable Family La Partnership, Parenthood, Social Parenthood, Names and Some Article& ECHR Case Law, in: A. Bainha im, ed THE INTERNATIONAL SURVEY OF FAMILY LAW 1997(The Hague: Martinus Ni]hoff, 1999),260n3 Interestingly, within ten months after enactment, the second largest group of registrants consisted of heterosexualcouples(1, 291 couples). The largest number of couples registering under the new law consisted of partmershipsfairlypopularintheNetherlands,Dec.1998,htt://www.cocnvindexhtmltiesyferea male couples(1, 507)and the smallest num ber of female couples(1, 198). Kees Waaldijk, Registered 42Stb.1997,324,Art.80aid2BW. Stb.1997.324 Art. 227 BW. Also, Dutch homosexua ls cannot adopt foreign children; Wet van 8 December 1988 houdende regelen inzake de opnem ing in Nederland van buitenlandse pleegkinderen met het oog op adoptie let opnem ing buitenlandse pleegkinderen), Stb. 1988, 566. In addition, under the Convention on Protection of hildren and Co-operation in Respect of Intercountry Adoption, which was adopted by the Hague Conference on Private Intemational Law, foreign or intercountry adoptions are allowed only if the couples are married although one person, regardless of whether he or she is single or in a relationship, may also adopt under the provisions of the Convention. The Netherlands ratified this convention on October 1, 1998 Wijziging van Boek I van het Burgerlijk Wetboek(adoptie door personen van hetzelfde geslacht), Kamerstukken //1998/99, 26673, nr 2(voorstel van wet)en nr 3(memorie van toelichting). For an English translation of the text of the bill, see the summary translation by Kees Waaldijk, http:lluliisleidenunivnuserlcwaaldii/wwwl(publicationsaboutlAwandHomosexualityUnpublishedpapers and minor publications) This bill was introduced on the same day the govemment introduced a bill that would open civil marriage to same-gender couples, which demonstrates how closely linked these two issues are
Meanwhile, it appeared that both houses were ready to enact the registered partnership bill and, eventually in 1997, Parliament approved two separate acts40 amending the Netherlands Civil Code and more than one hundred other statutes, establishing a system of registered partnerships for both homosexual and heterosexual couples.41 According to the new laws, persons registering their partnerships are to obtain almost all the legal rights that accrue to a heterosexual marriage. However, there are several notable exceptions. For example, the law only applies to Dutch citizens or foreigners who are residents of the Netherlands.42 Also, registered partnerships can be ended without seeking the permission of a court, whereas marriages must be terminated through court proceedings.43 In addition, the new laws do not affect the legal status of each of the partner=s children; persons in registered partnerships do not even have joint parental authority over each other=s children. Another difference is that homosexuals cannot adopt their partners= children, whereas later legislation permits unmarried heterosexual couples to adopt each other=s children.44 The Dutch government appears to have recognized this inconsistency in the new adoption law, because it has introduced a bill45 to the Dutch Parliament allowing same-gender couples to adopt children together.46 2.2.2 Opening civil marriage to same-gender couples: The report of the Kortmann Committee In October 1997, the committee that the Ministry of Justice appointed to study the question of opening up civil marriage - Commissie inzake openstelling van het burgerlijk huwelijk voor 40 Wet van 5 juli 1997, Stb. 1997, 324; Wet van 17 December 1997, Stb. 1998, 600. 41 Allowing heterosexual couples the option of entering into a marriage or a registered partnership has been criticized by many Dutch academics. See Caroline Forder, The Netherlands, An Undutchable Family Law: Partnership, Parenthood, Social Parenthood, Names and Some Article 8 ECHR Case Law, in: A. Bainhaim, ed., THE INTERNATIONAL SURVEY OF FAMILY LAW 1997 (The Hague: Martinus Nijhoff, 1999), 260 n.3. Interestingly, within ten months after enactment, the second largest group of registrants consisted of heterosexual couples (1,291 couples). The largest number of couples registering under the new law consisted of male couples (1,507) and the smallest number of female couples (1,198). Kees Waaldijk, Registered partnerships fairly popular in the Netherlands, Dec. 1998, http://www.coc.nl/index.html?file=statistics 42 Stb. 1997, 324, Art. 80a lid 2 BW. 43 Stb. 1997, 324. 44 Art. 227 BW. Also, Dutch homosexuals cannot adopt foreign children; Wet van 8 December 1988, houdende regelen inzake de opneming in Nederland van buitenlandse pleegkinderen met het oog op adoptie (Wet opneming buitenlandse pleegkinderen), Stb. 1988, 566. In addition, under the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, which was adopted by the Hague Conference on Private International Law, foreign or intercountry adoptions are allowed only if the couples are married, although one person, regardless of whether he or she is single or in a relationship, may also adopt under the provisions of the Convention. The Netherlands ratified this convention on October 1, 1998. 45 Wijziging van Boek 1 van het Burgerlijk Wetboek (adoptie door personen van hetzelfde geslacht), Kamerstukken II 1998/99, 26 673, nr. 2 (voorstel van wet) en nr. 3 (memorie van toelichting). 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). 46 This bill was introduced on the same day the government introduced a bill that would open civil marriage to same-gender couples, which demonstrates how closely linked these two issues are
personen van hetelfde geslacht( Committee on Opening Up Civil Marriage to Same-Gend Partners), known as the Kortmann Committee, # issued its report.48 While the committee members agreed unanimously that, legally, there should not be more than two types of relationships between two people, they were divided on what these two types of relationships should be. The minority of committee members favored an option in which the two types would be heterosexual marriage and registered partnership. The majority of the members however, favored another option in which the two types would be slightly different forms of civil marriage-heterosexual marriages, with the current presumptions of paternity of the children, and a second type of marriage in which there is no automatic parentage presumed when a child is born to the couple. The majority=s position was that same-sex couples can only be afforded equal treatment if they are allowed to enter into civil marriages. These mem bers do not view the new type of marriage as a break with tradition; afterall. marriage has always been a flexible institution which has kept pace with changes in society. They feel that their proposal represents a step towards recognizing homosexualrelationships, and might in fact inspire other countries to extend proper recognition to homosexual couples The minority members= disagreement with opening civil marriage to same-gender couples was twofold. First, these committee members believe that >[a] long-term relationship between two men or two women is comparable but not equal to that between a man and woman, if only in terms of reproduction.. [They question whether legislators are free to redefine marriage in a way that effectively removes one of its core elements reproduction. =0 The second concern was that opening civil marriage to same-gender couples >would raise serious problems internationally which should not be underestimated This committee was named after its Cha irperson, Professor S.C.J.J. Kortmann Commissie inzake openstelling van het burgerlijk huwelijk voor personen van hetzelfde geslacht Rapport (Den Haag, oktober 1997) Kortmann Committee: Unanimous when It Comes to Protecting Children, Divided over Legal Form for CouplesOct.28,1997,http:/www.miniustnl:80%0lcactual/nersber/nbo176htm
personen van hetzelfde geslacht (Committee on Opening Up Civil Marriage to Same-Gender Partners), known as the Kortmann Committee,47 issued its report.48 While the committee members agreed unanimously that, legally, there should not be more than two types of relationships between two people, they were divided on what these two types of relationships should be. The minority of committee members favored an option in which the two types would be heterosexual marriage and registered partnership. The majority of the members, however, favored another option in which the two types would be slightly different forms of civil marriage - heterosexual marriages, with the current presumptions of paternity of the children, and a second type of marriage in which there is no automatic parentage presumed when a child is born to the couple. The majority=s position was that: . . . same-sex couples can only be afforded equal treatment if they are allowed to enter into civil marriages. These members do not view the new type of marriage as a break with tradition; after all, marriage has always been a flexible institution which has kept pace with changes in society. They feel that their proposal represents a step towards recognizing homosexual relationships, and might in fact inspire other countries to extend proper recognition to homosexual couples.49 The minority members= disagreement with opening civil marriage to same-gender couples was twofold. First, these committee members believe that >[a] long-term relationship between two men or two women is comparable but not equal to that between a man and a woman, if only in terms of reproduction. . . . [T]hey question whether legislators are free to redefine marriage in a way that effectively removes one of its core elements - reproduction.= 50 The second concern was that opening civil marriage to same-gender couples >would raise serious problems internationally which should not be underestimated.= 51 47 This committee was named after its Chairperson, Professor S.C.J.J. Kortmann. 48 Commissie inzake openstelling van het burgerlijk huwelijk voor personen van hetzelfde geslacht, Rapport (Den Haag, oktober 1997). 49 Kortmann Committee: Unanimous when It Comes to Protecting Children, Divided over Legal Form for Couples, Oct. 28, 1997, http://www.minjust.nl:8080/c_actual/persber/pb0176.htm 50 Id. 51 Id