The Repercussions in the European Union of the Netherlands' Same-Sex Marriage Law
Patterson, Nicholas J., Chicago Journal of International Law
On September 12, 2000, by a lopsided 190 to 33 vote in the lower house of Parliament, the Netherlands became the first country to allow same-sex couples to marry on the same terms as heterosexual couples. The measure had the support of all of the parties in the ruling coalition and even some members of the conservative opposition.1 On December 19, 2000, the marriage law was approved by the upper house of parliament by a vote of 49 to 26? After approval by the upper house, the bill was signed into law by Queen Beatrix on December 21, 2000, and took effect on April 1, 2001. The Dutch law requires that at least one partner either be a Dutch citizen or be domiciled in the Netherlands.
The Netherlands has recognized registered same-sex partnerships since 1998. The country also gives same-sex couples many of the same rights as married couples, including inheritance rights and pension benefits. However, the new law removes the distinction between heterosexual and homosexual marriages. Same-sex couples can now have the same marriage ceremonies and divorce proceedings as heterosexual couples.
The two main differences between marriage for same-sex couples and heterosexual couples deal with adoption laws and lack of international recognition of same-sex marriages. The Dutch Parliament passed an adoption law concurrently with the same-sex marriage law which allows gay and lesbian couples to adopt Dutch children but not children from abroad. Commentators cite two reasons for this restriction. First, Dutch law-makers may have been concerned about conflicts with nations that ban adoptions by gays and lesbians.' Second, some may have felt that Dutch homosexuals should be discouraged from seeking babies abroad, fearing that Dutch hetrosexuals might be kept out of world adoption markets by suspicious foreigners.4
The conflict of laws question arises when same-sex couples marry in the Netherlands and then travel to other countries. Tesion may occur because of the disparity in legal treatment of same-sex couples in the Netherlands and the other Member States of the European Union ("EU").
Although some EU countries (England, for example) do not recognize same-sex relationships, there is a recent trend towards greater acceptance and legal recognition. Germany, France, Sweden, and Finland recognize same-sex relationships as a legal matter, though they do not offer the protections available in the Netherlands. While providing same-sex couples with many of the economic rights that married heterosexual couples enjoy, they shy away from acknowledging same-sex relationships as exactly equivalent to heterosexual marriages. The other EU Memeber States, besides the Netherlands, that protect same-sex relationships use a registered partnership rather than a marriage model. The most significant difference between same-sex relationships and heterosexual marriages in these countries concerns the right of adoption. Few Member States recognize lesbian and gay couples as joint parents of children born to one member of the couple, and many do not allow homosexuals to adopt children at all.
For instance, Germany does not recognize same-sex couples as joint parents and restricts adoption by homosexuals, although it provides gay couples with other rights.5 Beginning in 2001, gay couples will be able to register their relationships and will have the same inheritance and tenant rights as heterosexual married couples. In addition, foreign-born partners will be eligible for permanent residence permits.
The question of international recognition of same-sex marriages, and in particular the recognition of Dutch same-sex marriages by other EU countries, will increasingly become an issue as the law goes into effect. While there are legal arguments that support general EU recognition of these marriages, politics and social realities dictate against this result.
The recognition of Dutch same-sex marriages in other EU countries will probably depend on the domestic laws of Member States. …