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The Liberty Press
Vol. 5, No. 10 (June, 1999)
Nancy G. Maxwell(*)
On Dec. 11, 1998, the Dutch Cabinet proposed a bill that would open civil marriage to same-gender couples. If the Dutch Parliament approves the bill, the Netherlands will be the first country to allow same-gender couples to marry. A month earlier, on Nov. 13. 1998, the Dutch Cabinet also proposed a bill that would allow same-gender Dutch couples to adopt children together.
The Cabinet referred both bills to the Dutch Council of State for advice and it is anticipated that the Council will recommend that the bills be presented to the Dutch Parliament for enactment into law. It is predicted that the bills will pass both houses of Parliament because a large majority of the members of the Lower House of Parliament approve of allowing same-gender couples to marry and adopt children together, and the Dutch Senate generally enacts legislation that has a clear majority in the Lower House. The parliamentary process will take between one and two years before the bills would become national law.
The proposal to open civil marriage to same-gender couples has come as the result of ten years of Dutch legislation committed to the equal treatment of gay, lesbian, bisexual and transgendered persons. In 1990, the Dutch courts decided two cases concerning the issue of whether denying same-gender couples the right to marry was a violation of human rights law tinder international treaties.
Although the Dutch Supreme Court refused to find human rights violations, the Court did recognize that denying same-gender couples certain benefits of marriage may be unjustified, and this denial had the "possibility" of qualifying as discrimination, in violation of international law,. Since that time, the Dutch government has studied the discriminatory impact of denying marital benefits to same-sex couples and Parliament began enacting numerous bills to remedy this discriminatory effect.
For example, in 1992 the Dutch Government's Advisory Commission for Legislation issued a report recommending that unmarried couples be allowed to "register" their "partnership" and that many of the rights of marriage should attach to registered partners. Also in 1992, it became a crime to discriminate against persons based on sexual orientation. Two years later, in 1994, legislation was introduced in Parliament to allow registered partnerships and the Dutch Parliament enacted the General Equal Treatment Act, which prohibited discrimination in employment and in the provision of goods and services.
Finally, on Jan. 1, 1998, laws allowing unmarried couples to register their partnership took effect. Under the new registered partnership law, registered couples have almost the same rights as married couples. (Some of the differences include the fact that same-sex couples still are not allowed to adopt children as a couple and the termination of a registered partnership does not require a court order.) By passing the registered partnership legislation, the Netherlands joined Denmark, Norway. Sweden, Greenland and Iceland, which have enacted similar legislation
At the same time Parliament was considering registered partnership legislation, legislators also continued to be interested in allowing same-gender couples to marry and to adopt children together. In 1996, the majority of the Lowe House of Parliament passed a resolution in favor of allowing same-gender marriages and co-parent adoption. This resulted in the formation of a government committee to study these issues. When the committee members recommended in favor of opening civil marriage to same-gender couples and allowing co-parent adoptions in 1997, the Lower House requested, once again, that the Dutch government prepare bills to enact the recommendations into law.
Following national elections in May, 1998, the newly formed government composed of a coalition of labor, liberal and democratic parties, issued a statement that the Cabinet would issue a bill, before the end of the year, to open civil marriage to same-gender couples and allow co-parent adoptions by same-gender couples. This resulted in the present bills being approved and forwarded to the Council of State in November and December.
It is important to note, however, that this proposed legislation will apply only to Dutch citizens and persons who have “valid residence entitlement” in the Netherlands. Consequently, both of the persons wishing to be married, if the current bill is enacted into law, must fit within one of these two categories (i.e. be a Dutch national or a resident alien) before the same-gender couple can marry. The citizenship or residency requirement, therefore, prevents same-sex couples from coming to the Netherlands from other countries in an attempt to get married there.
Although this fact may be disappointing to same-gender couples from other places, this restriction actually makes the Dutch same-gender couple marriages much stronger and far more likely to be recognized in other countries, particularly in those countries that are members of the Council of Europe and the European Union. 1n fact, it may be that the first same-gender marriages that will be “legal” in the United States may be marriages between same gender Dutch couples who end up living in the U.S. for legitimate reasons.
Although many states have been quick to enact legislation that would not recognize same-gender marriages from other states, the Dutch marriages may be viewed quite differently since the issues involve another country, not another state and, in particular, a country with which the U.S. wants to maintain good relations. Even the federal legislation that denies recognition to same-gender marriages (the Defense of Marriage Act, known as DOMA) speaks in terms of federal application, not international application.
There are two hopeful conclusions that can be drawn from studying the Dutch experience with same-gender marriages and equal rights for gay, lesbian, bisexual and transgendered people. The first conclusion is that change is made in small steps. Changes in the Dutch law started when the Dutch adopted the French criminal code in 1810, thereby decriminalizing same-gender sexual conduct, and in 1971, the Dutch parliament adopted legislation making the legal age of consent for sexual contact the same for everyone. In 1983, a revision of the Dutch Constitution included a general non- discrimination clause, which has been interpreted to include discrimination based on sexual orientation.
Then in 1992, discrimination based on sexual orientation was made a crime and legislative studies concerning registered partnerships revealed the inequities that existed between married heterosexual couples and the lack of legal protections for persons in non-marital relationships. Finally, it was through the study of these equality issues in the context of registered partnership legislation that the need for same-gender marriage became even more apparent.
The second, and perhaps more important, conclusion that can be made by studying the Dutch experience is the realization that registered partnerships and same-gender marriages are an inevitability. The Council of Europe already has recognized this reality and on Mar. 15, it sponsored a conference to discuss the consequences of this inevitability. The attitude of' the conference was one of accepting that registered partnerships exist, that same-gender marriages are nut far behind, and that appropriate international recognition is essential to protect the rights of citizens who are in registered partnerships or married to a person of the same gender.
This acceptance and recognition in Europe eventually will impact the United States. Perhaps in dealing with foreign same-gender married couples, who will insist on their legitimate marital rights in the U.S., the eyes of the American public and policymakers will be opened to the inequities involved in denying persons the fundamental legal protections and rights that marriage provides, simply because these individuals happen to be of the same gender.
(*)Nancy G Maxwell is a Professor of Law at Washburn University School of Law in Topeka. She currently is doing research in the Netherlands, comparing the recent developments in the Netherlands with the present situation in the United States concerning same-gender marriage and adoption by same-gender couples.