OPENING CIVIL MARRIAGE TO SAME-GENDER COUPLES:
A Netherlands-United States Comparison

Nancy G. Maxwell (Washburn University School of Law, Topeka, Kansas, USA)

This article examines and compares the legal developments in the Netherlands and the United States concerning the right of same-gender couples to marry. These two countries were selected for this comparison because the Netherlands and some states in the United States appear to be on the verge of opening civil marriage to same-gender couples. However, the routes that each country is taking to this same destination have come from completely different directions. For example, in both countries same-gender couples have filed lawsuits seeking to marry. In the 1990s, five different cases were filed in the U.S., and the judges in at least three of these cases have been receptive to the petitioners' attempts to obtain marital rights. In the states of Hawaii and Alaska, lower court judges have held that the denial of marriage licenses to same-gender couples is unlawful discrimination in violation of state constitutional provisions; in the state of Vermont, the highest appellate court has ruled that the Vermont Constitution requires same-gender couples be granted the equivalent rights as married opposite-gender couples. Court challenges to the marriage laws in the Netherlands, however, have been unsuccessful and the Dutch judges have been unwilling to find that same-gender couples have a right to marry.

On the other hand, in July of 1999, the Dutch government introduced a bill in the Parliament that would allow same-gender Dutch couples to marry one another in civil ceremonies. Ironically, just the opposite legislative activity is occurring in many of the U.S. states. In fact, in Hawaii and Alaska the state legislators and citizens recently passed constitutional amendments to limit marriage to opposite-gender couples, to prevent the court decisions in those states from taking effect.

This article discusses and compares the contrasting legal developments in the United States and the Netherlands concerning the right of same-gender couples to marry. It does so by discussing the case law and the current legislative activity, first in the Netherlands and then in the United States, dealing with the right of same-gender couples to marry. The next section analyzes and compares the Dutch and United States legal histories concerning opening civil marriage to same-gender couples. This section examines how the differences in the two countries' legal systems, as well as the social status of homosexuals and the legal status of nonmarital cohabitation, have influenced the contrasting routes these two countries have taken toward opening marriages to same-gender couples.

Cite as: N. Maxwell, Opening Civil Marriage to Same-Gender Couples: A Netherlands-United States Comparison, vol 4.3 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (November 2000), <http://www.ejcl.org/43/art43-1.html>

Contents
1. Introduction
2. Legal developments in the Netherlands
2.1 Dutch case law
2.1.1 Challenging prohibitions against marriages of same-gender couples: The 1990s cases
2.1.2 Challenging prohibitions against marriages of same-gender couples: An analysis of the Dutch case law
2.2 Dutch legislation
2.2.1 Moving toward equality: Registered partnership legislation
2.2.2 Opening civil marriage to same-gender couples: The report of the Kortmann Committee
3. Legal developments in the United States
3.1 United States case law
3.1.1 Challenging prohibitions against marriages of same-gender couples: An overview of the constitutional analyses in the U.S. cases
3.1.2 Challenging prohibitions against marriages of interracial couples
3.1.3 Challenging prohibitions against marriages of same-gender couples: The 1970s cases
3.1.4 Challenging prohibitions against marriages of same-gender couples: The 1990s cases
3.1.4.1 Jurisdictions limiting marriage to opposite-gender couples: District of Columbia and New York
3.1.4.2 Jurisdictions supporting claims of discrimination: Hawaii, Alaska, and Vermont
3.1.4.3 The Hawaii and Alaska cases: Baehr v. Lewin and Brause v. Bureau of Vital Statistics
3.1.4.4 The Vermont case: Baker v. State of Vermont
3.1.5 Challenging prohibitions against marriages of same-gender couples : An analysis of the United States case law
3.2 United States legislation
3.2.1 The United States legislative response to Baehr v. Lewin
3.2.2 The enactment of domestic partnership legislation
4. Comparison and analysis of the Dutch and United States legal histories on opening civil marriage to same-gender couples
4.1 Differences in legal systems
4.2 Differences in the social status of homosexuals
4.3 Differences in the legal status of nonmarital cohabitation
5. Conclusion
Notes

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