Gay Marriage Goes to Court in Colombia

Letter From Bogota:

It’s getting better in Latin America. In recent years, advocacy campaigns on behalf of lesbian, gay, bisexual, and transgender (LGBT) individuals have paved the way for legislation and judicial decisions that limit discrimination on the basis of sexual orientation. At the core of the fight is the question of rights for same-sex couples, including civil unions, domestic partnerships, and marriage. Already, Colombia, Ecuador, and Brazil have recognized same-sex couples’ right to form domestic partnerships and civil unions, and Argentina, Uruguay, Mexico City, and some Brazilian states have legalized same-sex marriage.

It hasn’t been easy, of course. Every advance in LGBT rights has met significant resistance from conservative political parties and religious groups — the Catholic Church, in particular. The church, whose influence is unrivaled throughout Latin America, has systematically opposed all legal claims or reforms pushed by gay-rights activists across the continent. Pope Francis, when he was still a cardinal in Argentina, fiercely opposed the legalization of same-sex marriage in his country, and, according to The New York Times, went so far as to call the initiative a “destructive attack on God’s plans.” Catholic Church leaders have reacted similarly in Ecuador, Mexico, and Brazil.

The struggle between LGBT rights activists and religious groups is now coming to a head in Colombia, whose congress just rejected a bill that would have made same-sex marriage legal but where a court decision may ultimately have the final word. It took years of successful litigation before the Constitutional Court to establish equal rights on several grounds for LGBT Colombians, and that court could, sooner or later, make Colombia the fifth Latin American country where same-sex marriage is legal.

The fact that the initial bill in congress failed — and that a similar one is unlikely to be introduced anytime soon — illustrates that, in Colombia, as in many places, the most progressive reforms come from the courtroom. That, in turn, fuels concerns about the judiciary overstepping its bounds.

Court Order

In Colombia, same-sex couples started on the path to legal recognition in 2007, when the Constitutional Court ordered that domestic partnerships, created for heterosexual couples in 1990, must include homosexual couples as well. On this basis, in the following years, the court granted to LGBT citizens the right to inherit from deceased partners, the right to survivor’s pensions and health insurance coverage, immigration benefits, domestic violence protection, and protection from having to testify against a partner in court, among other rights and benefits.

In 1991, Colombia enacted a new constitution, which included a bill of rights and established a Constitutional Court to ensure the protection of fundamental rights. This made expanding LGBT rights through litigation more feasible than before. All of a sudden, a court could rule in the abstract on the constitutionality of a law — and, unlike, in the United States, the court did not need to first establish that a specific individual face harm.

For two decades after, liberal justices aggressively ruled against LGBT discrimination in Colombia. After the Constitutional Court extended domestic partnership to same-sex couples in 2007, it was only natural that marriage equality and adoption would be next on the agenda. In 2010, two lawsuits challenged the civil code’s definition of marriage and the concept of a family as laid out in several acts of congress — both of which were explicitly limited to a man and a woman.

In 2011, the Constitutional Court decided these two lawsuits in one ruling, and it is still unclear what the end result will be. On the one hand, the justices held that it was perfectly constitutional for the civil code to define marriage as between a man and a woman. On the other, it insisted that same-sex unions constitute a family. And therein lies the rub: if same-sex couples were now families, they would need a legal instrument to establish and formalize those families, lest they face unlawful discrimination. Instead of deciding on what that specific legal instrument would be — marriage is an obvious candidate — the court gave congress two years to come up with one. That two-year period ends on June 20 of this year.

At first, some members of congress tried to meet the court’s order by introducing a bill that would simply legalize same-sex marriage. But last month, when the issue came up for a vote, it was given an emphatic thumbs down — 50 to 17 — amid a torrent of homophobic and religiously motivated speeches. For instance, the conservative senator Roberto Gerlein cited the Book of Genesis, and went on to say that sex between homosexual men “is dirty, nauseating, a sex that deserves repudiation, an excremental sex.” In the same vein, José Darío Salazar, another conservative senator, stated that legalizing gay marriage would open the door to adoption for same-sex couples, and therefore to pederasty. The arguments that Colombia was a majority Catholic country and that most of the population opposed same-sex unions were presented as sufficient justification to block the measure.

The Constitutional Court foresaw this scenario. For that reason, its original decision had mandated that if Congress failed to create the legal instrument for same-sex couples by June 20 of this year, then notaries and judges would have to start formalizing same-sex unions. But the majority opinion did not stipulate explicitly whether that contract had to be marriage or something else. This situation has, not surprisingly, provoked a complicated debate among the different bodies of the Colombian government, many of which have specific agendas on this issue.

That debate will not likely be fully resolved on June 20. Even if the government steps in with a directive, some notaries and judges might claim they have the autonomy to construe the Constitutional Court’s decision in their own way. That would mean that some same-sex couples could get married and others could not, depending on the specific judge or notary they choose. This situation would spur further litigation on the basis of equal protection, renewing the debate about same-sex unions in the Constitutional Court.

Apart from the specific legal issues posed by the court’s decision, the fight has engendered a fierce debate on the question of religion’s role in law and politics. Since the court began to expand LGBT rights in the 1990s, prejudiced religious arguments and views have become gradually more prominent in public and legal discussions. The current ombudsman, Alejandro Ordóñez, has helped to bring religion back into political and juridical debates. A fervent Catholic who attends a Lefebvrist church in Bogotá, Ordóñez has been accused of distributing official calendars with biblical citations, commemorating official occasions with Catholic rites, and having a personal Catholic oratorio inside his office building. His stance as a Catholic against homosexuality is widely known, especially after he published in 2003 a book titled Toward the Free Development of Our Animality, in which he stereotyped homosexuals as abnormal, and called immoral Constitutional Court’s decisions protecting LGBT rights. In other words, although the 1991 constitution put an end to more than one hundred years of state’s confessional adhesion to Catholicism in the country and granted freedom of religion and conscience, religious groups and conservative parties still claim that the state needs to offer special protection for Catholicism and other monotheist religions, particularly those with Christian roots.

Colombians need to acknowledge that certain religious groups and conservative parties are using the same-sex marriage debate to challenge broader freedoms that were won two decades ago. For Colombia, where the state’s abandonment of Catholicism as its official religion is a recent memory, debates such as these are challenging the very definition of the state. For that reason, it is important for Colombians to understand that the current discussion on same-sex marriage legalization is not only about LGBT rights but also about the separation of the state and religion, and the protection and enforcement of fundamental freedoms.

Of course, Colombia is not the only place where this debate is taking place. The United States Supreme Court is about to decide two cases on LGBT rights this year — one against the Defense of Marriage Act (DOMA), which denies federal benefits to legally married same-sex couples, and the other one against California’s Proposition 8, which banned same-sex marriage there. Although equal protection and same-sex marriage are legal questions, the debates have been tied up in a broader discussion about what democracy is, and what influence religion should have in law and politics.

In Colombia, that discussion has taken place — and will likely continue to take place — in the judicial forum. As a result, the conservative parties and groups will eventually have no choice but to discuss their position in legal terms, and in a more temperate fashion. Of course, a court decision to legalize same-sex marriage would give conservative Catholic officials like Ordóñez an opportunity to decry judicial activism, but such views will have little traction in the long run. If past experiences with domestic partnership are any indication, after initial bursts of outrage the public would gradually come to accept the decision. And, if all that happens, the state crafted by the 1991 Colombian Constitution would be fortified and secured, and the influence of religion in political and legal matters neutralized.

In the United States, the debate has taken place in both the political and the legal realms. State legislatures can legalize same-sex marriage — to date, twelve of them have done so, and others may soon follow suit. But these marriages are nonetheless subject to limits imposed by federal law, in this case, DOMA. The U.S. Congress, like Colombia’s, is unlikely to repeal DOMA. Litigating it away at the Supreme Court level, then, is more expedient than introducing a bill in Congress where the discussion could be co-opted by religious and conservative groups. As in Colombia, resorting to the Supreme Court to overturn DOMA may be the best strategy after all.

To be sure, there is not one single strategy or answer that can resolve all these questions, as is always the case when people are fighting for their rights. What is clear, though, is that serious thoughtful debate may be more likely in the courtroom than in the congress, particularly where religion maintains a stronghold in legislative debate. In those cases, minority groups must rely on litigation to protect them against the tyranny of the majority — fitting, since courts were designed to carry out just that role in public life.

by Lina M. Cespedes-Baez
Source – Foreign Affairs