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Tuesday, March 01, 2016

Same-sex Marriage on Sint Maarten?

By , filed under: Civil

In Sint Maarten almost anything goes, but a same-sex marriage? Caught between the United States and Europe where same-sex marriages gain recognition or are flat-out recognized and its own more conservative and traditional way of life, Sint Maarten still has not made up its mind.

Recently, there have been new developments on the institution of gay marriage. In the United States of America, the Supreme Court of the United States decided on June 26, 2015, in the case Obergefell v. Hodge, that The Fourteenth Amendment, which deals with equal protection under the law, requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state.

On July 16, 2014, the European Court of Human Rights stated, in the case of Hamalainen v. Finland, that the European human rights law does not contemplate same-sex marriage because civil unions are already a genuine option providing the same legal protection for same-sex couples and is almost identical to that of marriage, so that there is no violation of Article 8 of the Convention.

Recently, on July 21, 2015, the European Court of Human Rights ruled in the case Oliari and Others v. Italy, that Italy is obligated to legally recognize and protect same-sex unions. This is quite a breakthrough, because Italy did not recognize same-sex unions for a long time due to its strong historical ties to the Roman Catholic Church.

The number of countries legalizing same –sex marriages and same-sex unions is increasing globally, and same-sex unions are becoming more and more legally and socially accepted and so the question arises: Should Sint Maarten legalize same-sex marriages and/or same-sex unions?

Sint Maarten, Curacao, and Aruba do not acknowledge same-sex unions yet. Furthermore, it is not possible for same sex-couples to get married in these countries. However, they do recognize same-sex marriages performed in the Netherlands. In the Netherlands, same-sex marriages as well as same-sex unions (Registered Partnerships) are lawfully licensed, recognized, and accepted. Therefore, The Caribbean Netherlands, comprised of Bonaire, Sint Eustatius, and Saba follow the same regulations.

Overall in the Caribbean there are not a lot of countries that recognize same-sex unions, or have legalized marriage for same-sex couples. The countries that have regulations according same-sex unions or same-sex marriages are: Guadeloupe, Martinique, Puerto Rico, Saint Barthelemy, Saint Martin and the United States Virgin Islands.

Although most Caribbean islands are yet to recognize same-sex unions and marriages based on history, culture, or religion, the momentum for recognizing and legalizing these unions continues to increase world-wide. It is important for Sint Maarten to keep an open mind towards this subject and look at it from a worldwide perspective. Contemplating acceptance is essential, especially because tourism is the basis of the economy for Sint Maarten.

It needs no explanation that everyone in this world should have equal rights. Therefore, fundamental rights such as freedom of speech, freedom of religion, as well as the right not to be discriminated against based on sexual orientation or country of origin, are accepted as customary law, which is in most countries laid down in ground statutory laws.

Although many may argue that a marriage should be defined as a long-term commitment between a man and a woman, alternative options should exist for couples of the same sex to enter a long-term commitment with similar legal consequences as when people enter into a marriage. Mainly the legal effects are essential for a lot of people who want to get married. For example, marriage regulations affect inheritance, pensions, alimony, community of goods, et cetera. Couples of the same sex should also have the right to be able to have the same legal effects by entering a legal long-term commitment. These legal effects can be institutionalized by a same-sex union, without having to change anything with regard to the institution of marriage. If the legalization of same-sex marriages seems to be a bridge too far, one should consider the same-sex union as an alternative.

Since the verdict of the European Court of Human Rights in the case Oliari and Others v. Italy, stating that Italy is obligated to legally recognize and protect same-sex unions, one can wonder if Sint Maarten still has a choice to legalize same-sex unions or not. Not recognizing and protecting either same-sex marriages or same-sex unions could be regarded as a violation of article 8 of the European Convention of Human Rights (the right of private and family life). The European Convention of Human Rights is also applicable to Sint Maarten since October 10, 2010.

See also Karel Frielink’s Weblog: http://www.curacao-law.com/2008/08/07/dutch-same-sex-couples-have-the-same-rights-as-dutch-caribbean-couples/