As the country’s top court prepares to rule on same-sex marriage, a man whose lawsuit has been hanging in the balance for two years hopes the landmark US supreme court decision ripples down to Latin America
The US supreme court’s landmark decision last month legalizing gay marriage across the United States was the best news Luís Felipe Rodríguez had heard in a long time.
Though the ruling had no direct impact on him, Rodríguez – who lives in the Colombian city of Cali – hopes it will help sway his country’s top court, which faces a similar decision based on a case he brought two years ago.
“That was really positive news and it has created all sorts of expectation here in Colombia,” he said.
Rodríguez and other gay rights activists across Latin America hope that the US supreme court’s landmark decision makes waves in courts and parliaments throughout Latin America.
“The US supreme court decision is an important precedent to advance marriage equality in Latin America,” said Marcela Sánchez, director of the Bogotá based group Colombia Diversa.
On the heels of the US decision, the Colombian government has come out publicly in favor of marriage equality. “Equality is unstoppable and equality will also come to Colombia,” the interior minister, Juan Fernando Cristo, said.
And despite a long history of social conservatism and deeply rooted Catholic tradition, Latin American countries have been at the forefront of recognizing gay marriage or civil unions.
Mexico City became the first capital in Latin America to allow same-sex unions in 2009. The following year, Argentina became the first country in the region to approve same-sex marriages nationwide. Brazil followed suit with a federal court ruling in May 2013, and Uruguay enacted a same-sex marriage law in August of the same year. Civil unions between gays are recognized in Colombia, Chile and Ecuador.
A week before the US supreme court made its ruling, its counterpart in Mexico did something similar, though to much less fanfare.
Although only the capital and two of Mexico’s 31 states – Quintana Roo and Coahuila – explicitly allow for marriage equality, the supreme court had consistently ruled against state laws barring same-sex unions.
Following decisions on five individual cases the court followed up in June with general ruling, known as a jurisprudential thesis, stating that laws restricting marriage to heterosexual couples were discriminatory and unconstitutional.
“As the purpose of matrimony is not procreation, there is no justified reason that the matrimonial union be heterosexual, nor that it be stated as between only a man and only a woman,” the ruling found.
That landmark ruling was the result of a low-key legal strategy which contrasted starkly with the broad movement for change north of the border.
“It started as a small idea to help three specific couples [in Oaxaca], and I never thought it would generate what came later,” said Mexico City-based activist and lawyer Alex Ali Méndez.
The ruling effectively put an end to the debate in Mexico, but in Colombia gay couples have been in limbo for the past two years. A 2011 constitutional court recognized same-sex couples as families and ordered the congress to pass a law that would afford gay couples the same rights as in a heterosexual marriage. If lawmakers failed to pass a law by June 2013, by default gay couples could “formalize” their unions before notaries and judges.
But the court’s language was vague, and when Rodríguez and his partner Ramiro Chávez went to tie the knot, the notary told them they could not be married – but they could enter into a “solemn contract”.
“You are either married or single. There is no such marital status as ‘in a solemn contract’,” says Rodríguez, a 25-year-old language teacher. He challenged the notary’s decision not to carry out the marriage and on 30 July, the constitutional court will hold a public hearing, before handing down its decision.
Activists in Colombia are hopeful that history – and legal precedent – is on their side, but marriage equality in Latin America still faces steep opposition. Same-sex unions or marriage are not recognized in any form in Peru, Venezuela, Paraguay and in most Central American and Caribbean countries.
Even in countries where marriage equality has been enshrined in law, the general population is not entirely convinced.
Among the countries were gay marriage is legal in Latin America, Uruguay is the only one where a majority (62%) supports it, according to a survey by the Pew Research Center taken in 2013 and 2014. About half of Argentinians and Mexicans favor gay marriage, according to the survey, while support in Brazil is at 45%.
In Chile, where same-sex unions were approved this year, 46% favor allowing gay and lesbian couples to marry.
Meanwhile, 80% of Paraguayans, 74% of Ecuadorans and 64% of Colombians say they oppose same-sex marriage. In Central America about three-quarters or more of Hondurans, Guatemalans, Salvadorans and Nicaraguans are against gay marriage.
Javier Suárez, a Colombian opponent of same-sex marriage, says the US court decision sets a bad example for Latin America. “If in the United States they say yes [to gay marriage] that doesn’t mean we have to say yes here because the cultural and historical context is different,” he says.
Suárez, who heads an organization called Marido y Mujer (Husband and Wife) , says he has personally challenged 76 civil marriages between same-sex couples performed by judges in Colombia since the 2013, leaving the couples in legal limbo until the constitutional court rules on the broader issue.
Suárez says if gay marriage is approved in Colombia, he’ll challenge it before the international criminal court.
But if it doesn’t, the issue could end up in the Inter-American Commission for Human Rights, which is becoming the court of last recourse for gay couples in Latin America who have exhausted all possibilities in their own countries.
Couples from Chile, Costa Rica, Mexico and Paraguay have filed complaints with the commission, which refers cases to the inter-American court of human rights, whose rulings affect all of Latin America. The court has yet to rule on a same-sex marriage case specifically, but in a case where a Chilean mother lost custody of her children because she was lesbian, the court said any discrimination based on sexual orientation violates the Inter-American Convention on Human Rights. “A right that is recognized for people cannot be denied or restricted under any circumstance on the basis of sexual orientation,” it said.
That sets the tone for the cases on same-sex marriage throughout the region and perhaps for Colombia’s constitutional court.
If the court green-lights gay marriage, Rodríguez says friends are trying to convince him to throw a blowout wedding in the colonial Caribbean coast city of Cartagena – a favorite destination for honeymoon couples.
“It could happen,” he said. “It just might.”
by Sibylla Brodzinsky in Bogotá and Jo Tuckman in Mexico City
Source – The Guardian