Colombia’s top court held a day-long hearing on Thursday on whether it should interpret its constitution as giving marriage rights to same-sex couples — framing the debate in a wider discussion about whether international standards now dictate that marriage equality is a fundamental right.
The hearing comes five weeks after the U.S. Supreme Court ruled to allow marriage equality, in a move that reverberated around the world.
Unlike the U.S. Supreme Court, Colombia’s Constitutional Court weighs foreign precedent and international human rights law in its decisions. To discuss the question of marriage equality in Thursday's debate, the Court’s judges invited a broad range of international opinions, including representatives of the United Nations’ human rights office, the U.S.-based conservative legal group the Alliance Defending Freedom, and Albie Sachs, the former chief justice of South Africa’s Constitutional Court who authored a 2005 marriage equality ruling.
The case concerns several technical questions of Colombian law — namely whether the constitutional clause defining marriage as between a man and woman trumps other provisions ensuring equality and the rights to family protections — but the list of participants may signal that the justices see themselves as also adjudicating a question that extends far beyond their country’s borders: Now that marriage equality is becoming the norm in almost all of the world’s developed democracies, should it be considered a fundamental right in countries that strive to meet a gold standard for human rights?
And if the court concludes that this is the key question in this case, those arguing to uphold the existing marriage law appear to face an uphill battle.
At least that seemed to be the concern behind much of the argument from the Vice-Attorney General, Martha Isabel Castañeda Curvelo, when she made her office’s defense of the law. (While the attorney general's office is in favor of the law, the government of President Juan Manuel Santos is supporting the case for marriage equality.)
“In our country, fundamental rights should be interpreted according to the political constitution, not in accordance with the jurisprudence of foreign courts nor the opinions of invited experts,” Castañeda said in her presentation, a line that was blasted out by the attorney general’s office’s official Twitter account.
Proponents of that view argued that the state regulates marriage because it is connected to reproduction, an argument forcefully rejected in June by the Supreme Courts of both the United States and Mexico.
The “feelings between two people is not the subject of protection” under marriage law, argued Sofia Martínez Agraz of the Alliance Defending Freedom in her presentation. “The interest it is the procreation between a man and woman that is the reason for the state to intervene.”
This litigation began more than five years ago when it was far from clear that marriage equality would gain traction outside of a handful of countries. When Colombia’s Constitutional Court took up a marriage equality case in 2011, Canada and Argentina were the only countries in the Americas that had marriage equality, and it wasn’t law in some of the European Union’s major powers either.
Though the Colombian Constitutional Court had issued a string of rulings supporting LGBT rights reaching back more than 15 years, the ruling it produced in 2011 tried to duck the fundamental question, issuing what the primary LGBT rights attorney on the case, Mauricio Albarracín, called a “Frankenstein decision.”
On the one hand, the court held that same-sex couples were entitled to the same legal protection as heterosexual couples and said the kind of partnership status that has been open to them since 2007 were insufficient. But it didn’t actually use the word “marriage,” nor did it immediately change anything for same-sex couples. The court held that Congress was obligated to change the family law within two years. As a backstop, the ruling said that if the deadline passed without new legislation, couples would be allowed to “formalize and solemnize a contractual link that permits them to constitute a family.”
Congress failed to legislate, so in 2013 same-sex couples began trying to marry, and the officials that perform marriage split over exactly what the 2011 decision meant. Many interpreted the decision to mean the court meant a “solemn union” to be a new kind of partnership status distinct from both the existing partnership status and marriage, but around 40 couples were able to find judges who married them under their interpretation of the 2011 decision.
Thursday’s hearing began with testimony from three of those who had married as well as a couple of marriage officials who explained their differing interpretation of the 2011 ruling.
Andrina González and her wife, Sandra Rojas, were moved to tears as they testified.
“We married for love, for conviction,” said González. “Our marriage concerns the right to be free and equal.”
While their story was emotional and personal — recounting how they met and why their marriage meant so much — her words also signalled how they stood at the Constitutional Court under very the different international context than was in place in 2011.
“Our marriage concerns the right to be free and equal,” González said as she concluded, echoing the phrase that the United Nations High Commissioner for Human Rights office took for the Free and Equal Campaign, an international LGBT rights effort it launched in 2013.
A representative from the High Commissioner’s office, Auro Fraser, was on the program later in the day, urging the court to bring protections for “same-sex couples up to the level in which we find the rights for heterosexuals.”
Fraser spoke carefully, noting that international human rights law did not yet create any obligation for states to establish marriage equality. His agency only stated for the first time in June that partnership recognition was necessary to protect gays and lesbians’ human rights. The European Court of Human Rights ruled only last week that marriage was not a right for same-sex couples under the continent’s human rights charter, although there was a right to some form of partnership recognition.
That ruling was based in part on the fact that many European countries do not have marriage equality, and implied that it could reach a different conclusion if more states adopted it. The question of partnership rights hasn’t been tested under the international human rights court that has jurisdiction over Colombia, the Inter-American Court of Human Rights, which is the judicial arm of the Organization for American States. If the court does rule, it will come at a time when the majority of the population of the Americas live in countries that have marriage equality. Mexico’s Supreme Court cited a 2012 decision saying the American Charter of Human Rights does prohibit discrimination on the basis of sexual orientation in one of its marriage equality rulings.
But the court that once faced the most analogous situation to that before Colombia’s is South Africa’s, which ruled in 2005 that same-sex couples had the right to marry but left it to the country’s legislature to change the law. Unlike in Colombia, the Parliament complied with the ruling, but the South African ruling has been one of the most globally influential in establishing that restricting same-sex couples to partnership statuses other than marriage is inherently unequal.
The then-Chief Justice of the South African Constitutional Court, Albie Sachs, was one of the international experts asked to speak at Thursday’s hearing, which he did in a video message broadcast to the court. He said that the stakes of their decision was obvious to his colleagues.
“In South African history, as in American history, [separate but equal] was never equal in practice, and it presupposed something …. almost toxic in allowing people of color to have the same rights in the same way,” said Sachs, who was a member of the resistance to apartheid and lost an arm when his car was bombed in 1988. “We felt the same in regard to same-sex marriage: separate but equal was discriminatory.”
The Colombian Constitutional Court could well decide that regardless of this principle, the country’s constitution or separation of powers leave it no room to act. And the Colombian LGBT rights lawyers gave the court plenty of arguments based on Colombian law if it wants to avoid ruling for marriage equality based on international precedent, and their points were backed up by President Juan Manuel Santos’s minister of justice and minister of interior, who both appeared to argue for marriage equality. But the testimony of the day certainly left the impression that it wants to decide a much larger question, and perhaps that it wants to nudge the consensus in international human rights law further towards marriage equality.
A decision is expected later this summer.