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The Surprising Cascade of Pro-Gay Marriage Decisions in Latin America

David Landau, Florida State University College of Law

Ten years ago, Latin America would have been one of the last places where one would have expected an avalanche of same-sex rights decisions and policies. But that’s indeed what has happened recently, bookmarked by a December decision of the Mexican Supreme Court. I’ll summarize just one area here, gay marriage, and bracket a range of other issues like anti-discrimination laws and adoption.

In 2007, Colombia legalized same-sex “marital unions in fact” (a kind of common law marriage) in an opinion authored by one of the Court’s more socially conservative members, Rodrigo Escobar Gil (now on the Inter-American Commission).  The Court has since gone further and in 2011 ordered the Congress to legislate on full-fledged same-sex marriage within two years, a proposal that has run into support but also opposition in the Congress. The Court did not explicitly require that the heterosexual and homosexual marriage regimes be identical, but it did hold that the “marital union in fact” option gave insufficient protection to same-sex couples who wanted to formalize their union, and thus held that they suffered from a “deficit of protection” under the law.

The Brazilian Supreme Federal Tribunal (STF) legalized similar civil unions in 2011, and in Argentina, the Congress legislatively approved gay marriage back in 2010. An Uruguayan bill legalizing same-sex civil unions passed in 2007, and a full-fledged marriage bill is working through the legislature and is likely to pass early this year.

In Mexico, the process has been somewhat piecemeal, as in the United States – most significantly, the capital district approved same sex marriage in 2009. The Supreme Court upheld this law against constitutional challenges and held that other states had to recognize marriages performed there.

And just this past December, the Mexican Supreme Court heard an amparo (individual complaint) action by three separate plaintiffs against a provision of the civil code of the state of Oaxaca that defined marriage as being between a man and a woman. The Court granted the amparo in favor of all three plaintiffs, holding that the civil code provision was unconstitutional and violated the constitutional right to equality.

Because of the peculiar mix of federalism and precedential rules under which Mexico operates, the decision has very limited technical effects beyond allowing the three couples at issue to marry. Since the rules of the Mexican amparo require jurisprudence to be reiterated five times before they have binding precedential effects, the Court would need to state the same jurisprudence in two other cases involving Oaxaca couples before they would bind the courts with respect to that state. And the same kind of slow reiteration of jurisprudence would likely be necessary with respect to the civil codes of all the other Mexican states. Frontal, abstract challenges to the code provisions with immediate erga omnes effects are not possible because they are old pieces of legislation.

Still, the decision does indicate the likely direction in which the Court is moving. Its most prominent justice, Jose Ramon Cossio, told the press that it was “forseeable that if other people from other federal entities challenge a code with a similar condition, the chamber will reiterate its criterion and that with the passage of months will generate an obligatory jurisprudence.” While the Court may be waiting to gauge public reaction, and while other amparo panels could possibly take a different view of the issue, a probable, if not certain, endgame is that the court will slowly go about constitutionalizing same-sex marriage throughout the country. Moreover, the decision points to at least some changes in political attitudes – the Oaxaca state legislature responded to the decision by expressing some support for reforming the Code.

Why has a seemingly unlikely region become something of a leader – at least applying formal legal metrics – on same-sex issues? Some piece of the story lies in popular attitude changes. While sweeping generalizations are dangerous, the Latin America today is not the Latin America of 20 or even 10 years ago. It is often much less influenced by the Catholic Church and more progressive on a range of social issues; in certain countries like Argentina, slight majorities now favor same sex marriage. But this isn’t the whole story. There is still plenty of opposition to same-sex rights across huge swaths of Latin America – surveys from 2010 suggest that support languishes below 40 percent in most of the region, including Brazil (40), Mexico (38), and Colombia (34). The popular reception of same-sex rights has been at best uneven; there is still plenty of discrimination based on sexual orientation in Latin America.

At least as big a part of the answer, I think, rests on the currents of international human rights law and comparative constitutionalism that have become so important regionally. A paradox of Latin America is that while human rights are still routinely violated, and while enforcement of Inter-American Court decisions remains deeply problematic, the discourse of human rights is very powerful there. And the diffusion of “new constitutionalist” ideas has become much thicker recently. The fact that the Colombian Constitutional Court would use these currents to impose same-sex marriage is perhaps unsurprising, since it is the regional leader in both producing and receiving those currents. The fact that the Mexican Supreme Court, which has been both much more closed to those currents and more of a “structure” court than a “rights” court, has now moved towards protection of these rights is surprising, and shows how thick these exchanges of ideas have become.  It seems certain that we will see more of these decisions from Latin American courts in the next few years.

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Published on January 9, 2013
Author:          Filed under: Analysis
 

5 Responses

  1. David, this is really interesting. Do we have any examples of other once-controversial rights or liberties that have since become conventional in Latin American political culture and entrenched in law, either via formal amendment or judicial decision, as a result of the diffusion of foreign or international liberal norms into Latin America?

  2. Ran Hirschl

    Very interesting post. Thanks, David. Do Latin American constitutional courts cite each other in making those progressive rulings or do they refer to the international canon from North America, Europe, South Africa, etc. BTW, is there good empiricial work on patterns of foreign citations in Latine American constitutional jurisprudence?

    Ran

    • David Landau

      Thanks Ran. There is still no really good empirical work on this topic, it’s a big gap we need to fill and could fill relatively easily. My sense is that there is a kind of hierarchy among courts there, depending also on the networks in which the judges move. The judges on more elite, globally-known courts like the Colombian cite extensively from the global canon. The lesser ones tend to cite more the regional leaders from Latin America, maybe in addition to some of the stuff from the international canon. As well as data on citation, I would love to have data on the professional networks of these judges, what conferences they go to, etc, although that would be harder to obtain.

  3. Vanice

    Trying to answer Ran Hirschl’s question – at least, taking into account the Brazilians scenario. In Brazil – and the decision in same-sex marriage is not different – citing other Constitutional’s Courts decision is not a frequent feature in judicial review. Even though quotation of books and articles may be found – our Justice Gilmar Mendes, former President of the Court took his doctoral degree in Germany – ; a dialogue with recent decisions in other countries is not found in our jurisprudence.
    Another issue I’ld like to point is that our decision in same sex marriage takes for granted that with the Court’s proclamation of the legal possibility of those kind of partnerships, the problem related with equality would be solved. Nevertheless, in the ordinary life, gay couples still face serious difficulties considering that there is not a formal pattern that could be applied when it comes to including your partner in insurance programs, social benefit programs and so on and so far. Why the Supreme Court in Brazil didn’t ordered Congress to legislate in the matter? The formal motivation is related with procedure – but the common opinion among the legal community is that the statement was done, and that such an order might be simply ignored (as it has already happened).
    Last, but not least… One explanation to these decisions is also that they do not challenge sensible matters as tragic choices and priority setting in socioeconomic rights. So this is a field in which the Court could decide with more liberty then when ruling – as it has been required to do – if government is supposed to deliver, as a current public policy, high cost medicine to all citizens in Brazil.

  4. Ran Hirschl

    Thank you, Vanice. This is very helpful. Your point about why courts may find it easier to advance a progressive agenda with respect to certain issues but not others (e.g. socio-economic rights) is right on.

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