Full Faith & Credit in Aruba

Tuesday, June 14, 2005

Full Faith & Credit in Aruba

I gather that America is hearing a lot these days about what the Dutch call "the West." As you may not know, the Kingdom of the Netherlands includes not only the Netherlands but also the Netherlands Antilles and Aruba (Aruba used to be part of the Netherlands Antilles but is now a separate entity). These three units do not exactly form a single country; the Antilles and Aruba are not part of the EU, for instance. But, under the Statute of the Kingdom of the Netherlands, they are something more than a federation; the Queen is the head of state of all three, for example. The Statute governs the relationship among the three countries, giving the former colonies considerable autonomy but also permitting some matters to be regulated centrally.

While the U.S. is focused on Aruba because of a missing Alabamian, gay and lesbian groups in the Netherlands are concerned about a quite different matter. Same-sex marriages are legal in the Netherlands. Both the Antillean and Aruban governments have refused to recognize marriages performed in the Netherlands between Antillean or Aruban citizens of the same sex.

You will hear echoes of the doomsday scenario of anti-equality activists in the U.S.: if even one state authorizes same-sex marriage, then all the other states will have to recognize those marriages under the Full Faith and Credit Clause of the U.S. Constitution. The federal Defense of Marriage Act [sic] purports to relieve states of that obligation, but some so-called Christian conservatives think that this part of DOMA might be struck down if it were tested in court.

Governor Romney of Massachusetts is trying to postpone the day of reckoning by invoking a Massachusetts law against performing marriages between out-of-staters when the marriage would be illegal under the laws of the states in which they reside; the state's Supreme Judicial Court will hear arguments later this year as to whether that law can be applied to prevent gay and lesbian couples from, e.g., Connecticut from crossing the border and getting married in the Commonwealth of Massachusetts. But even if Romney succeeds, that will only put off the problem, because, before too long, a same-sex couple that actually does live in Massachusetts will get married, then some time later move to another state, and then claim marital status in that state (e.g., by filing a joint tax return or filing for divorce). In any case, a lesbian couple living in Florida did manage to get married in Massachusetts before Romney ordered the county clerks to stop marrying gay out-of-staters, and they sued in federal court in Florida to strike down DOMA and require Florida to recognize the marriage under the Full Faith and Credit Clause: they lost. (They have decided not to appeal, perhaps having been talked out of it by gay right organizations who pointed out that the 11th Circuit, where the appeal would go, isn't the best place right now to bring a test case). The Florida case was the first challenge to the full faith and credit aspect of DOMA, but it won't be the last, no matter whether Romney wins or loses before the SJC.

The Aruban and Antillean governments find themselves dealing with the Dutch version of the Full Faith and Credit Clause: Article 40 of the Statute of the Kingdom of the Netherlands (Dutch pdf) provides that "authentic acts" (a civil-law term that includes entering into a marriage contract) undertaken in one of the three countries will be given effect in the other two countries "subject to [or giving due regard to] the laws of the country wherein the act is to be given effect." The translation is mine and thus subject to question, not to mention the ambiguity, reflected by my bracketed alternative, caused by the multiple definitions given by my dictionary for inachtneming.

Same-sex couples from both the Antilles and Aruba have gotten married in the Netherlands, and both governments have refused to recognize the marriages when they returned. Litigation has ensued (surprise, surprise). In the Antilles, the judge dismissed the first such case for lack of jurisdiction, apparently because of a technical mistake in the pleadings. But in Aruba, a court decided last December that Article 40 required the Aruban government to register the marriage of a lesbian couple who had gotten married in the Netherlands. The government has appealed. Ultimately, appeals from the Antillean and Aruban courts go to the Supreme Court in The Hague--one of several mechanisms that circumscribe the former colonies' autonomy--though I'm not sure whether there's still one more layer of courts to go through in Aruba in this case before getting to the Supreme Court.

Meanwhile, Dutch MPs have asked questions in Parliament (Dutch) of the minister with responsibility for relations with "the West," and it seems that the government in the Hague is urging the Antilleans and Arubans to recognize Dutch same-sex marriages. The latest development is that one of the women has applied for refugee status (English) in the Netherlands because of the anti-gay backlash she claims to have suffered in Aruba.

Article 40 is not the Full Faith and Credit Clause, and Aruba is not Alabama (as Americans have recently, and sadly, come to know). But consider this case a preview of coming attractions.

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