Council of Advice: Proposal to make same-sex marriage impossible in Curaçao is unnecessary

December 5, 2023  –WILLEMSTAD – Amending the Constitution of Curaçao to prevent same-sex marriage is unnecessary. This is the conclusion of the Council of Advice in response to the advisory request following the draft bill from Member of Parliament Rennox Calmes. 

The Council reaches this conclusion based on two possible scenarios that may unfold now that the Supreme Court in the Netherlands is set to rule on a cassation case concerning the judgment of the Court in Willemstad, which ruled that the exclusion of marriage for same-sex couples is in violation of the Constitution and constitutes discrimination. 

Scenarios 

Suppose the Supreme Court does not change the decision of the Court; this would mean that the Supreme Court finds unfair treatment of same-sex couples regarding the right to marry. In this case, the new article that Calmes wants to include in the Constitution, recognizing only marriage between men and women, would not change much. 

Same-sex couples could still argue that they are being treated unfairly under the Constitution based on the anti-discrimination provision. The court could then rule that Curaçao is acting unlawfully by not opening marriage to same-sex couples. In short, even with the new article, the situation for same-sex couples would not really change, according to the Council of Advice. 

Suppose the Supreme Court does change the decision of the Court and determines that there is no unfair treatment. In this case, Rennox Calmes’ new article would have no effect on the existing situation where same-sex couples cannot marry. It would be unnecessary. 

The Council of Advice notes that even in this scenario, alternatives similar to marriage must still be offered to comply with international obligations. 

Fundamental Rights 

Regarding the Constitution of Curaçao, the Council of Advice states that it safeguards fundamental rights and the democratic rule of law. The legislature must, under all circumstances, respect the safeguarding function of fundamental rights and must also assess proposed legislation against the requirements of subsidiarity and proportionality. In plain Dutch, this means evaluating whether a certain measure or decision is both necessary and reasonable. 

In other words, the Council continues in its conclusion, even if the legislature believes there are valid reasons to exclude same-sex couples from marriage, it must still consider that the interest it aims to serve must be proportionate to the infringement that the proposed legislation makes on individual interests. The considerations made by the legislature must be evident from the explanatory memorandum. 

The Council of Advice finally warns the government and parliament that, in any case, a legal partnership comparable to marriage must be designed to comply with Article 8 of the ECHR, which stipulates that same-sex couples not only have the right to the recognition of the right to private life but also the right to family life. 

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