Latin America's Gay Marriage Revolution

March 29, 2013
J. Lester Feder

In his second inaugural address, U.S. President Barack Obama pledged to make the United States a beacon for the world by recommitting the country to its ideals of equality. He also made history by saying those ideals demand marriage rights for same-sex couples just as they have demanded equal citizenship for women and African Americans.

But even if the Supreme Court or lawmakers soon agree with Obama's words -- "for if we are truly created equal, then surely the love we commit to one another must be equal as well" -- the United States will be a latecomer to advancing marriage rights. The world's leaders on this issue are not just from places Americans might expect -- Western Europe or Canada -- but many countries in our own hemisphere; places not usually known for progressivism on social issues. While Obama was undergoing his "evolution" on marriage rights, there has been a gay rights revolution that has stretched from Tierra del Fuego to the Rio Grande.

One dramatic illustration: When a broad coalition of human-rights activists brought a gay rights charter to the United Nations in 2007, the push was led not by the likes of Sweden or the Netherlands, but by Argentina, Uruguay, and Brazil. Same-sex marriage was not legal in any of these countries then, but a lot has changed in the years since.

In 2010, Argentina's congress approved an "Equal Marriage" law, the same year same-sex marriage also became legal in Mexico City. A year later, Brazil's supreme court ruled same-sex couples were entitled to partnership rights through a kind of domestic partnership status, and some states -- including the largest, São Paulo -- are now performing full marriages for same-sex couples. The lower house of Uruguay's legislature voted in December 2012 to legalize same-sex marriage nationwide, and its senate is widely expected to pass the law when it votes in April.

There were also several LGBT rights victories on issues beyond marriage.

Though Bolivia's 2009 constitution bans same-sex marriage, it also bans discrimination on the basis of sexual orientation and gender identity. Chile, one of South America's most conservative countries, passed a non-discrimination bill in 2012 and elected its first openly gay politician. And the government of Argentine President Cristina Fernández de Kirchner built on its passage of the marriage law to enact the world's broadest legal protections for transgender people last year.

This is not to say that all of Latin America is a gay-rights paradise. Laws throughout Central America, where there is an especially strong evangelical movement, remain particularly hostile, as they do in Peru, where the mayor of Lima faced a bruising recall effort thanks in part to her attempts to pass an ordinance banning discrimination on the basis of sexual orientation. And many gay people remain closeted or face serious threats of hate crimes even in countries where the laws are very progressive -- in many places, the right to be safe is far more important than the right to marry.

But the rapid advance of same-sex partnership rights is striking, especially considering that it was only a few years ago that these governments were fighting with the Catholic Church to legalize divorce.

The specific reasons these gains have been possible differ in each country. But a major factor in all of them is that LGBT activists have managed to link their cause to broader efforts to shore up human-rights protections in countries still coping with the legacies of anti-democratic regimes that fell in the late 20th century. Additionally, the courts have embraced their role as defenders of human rights and measure themselves against international standards.

Take the case of Colombia. In 2011, the Constitutional Court ruled that same-sex couples must be considered a "family" under the law. It ordered the congress to pass a law equalizing the rights of same-sex couples within two years. As a backstop against congressional inaction, the ruling also said that notaries and judges could automatically begin solemnizing same-sex unions by June 20, 2013, with or without Congress's blessing.

This ruling was not perfect in the eyes of Colombian LGBT advocates -- the court stopped short of saying these protections must be called "marriage," leaving that up to the legislature to decide. But it spelled out that fundamental legal protections are at stake and put momentum on the side of marriage advocates.

Colombian law demands this level of protection be extended to same-sex couples, the court wrote in its decision, to protect gays and lesbians' fundamental rights "to personal development, autonomy and self-determination, [and] equality."

The ruling came despite strong pressure from the Catholic Church, which is continuing to lobby against same-sex marriage in the Colombian congress. A bill to legalize same-sex marriage cleared a preliminary vote in the Senate in December, but even the bill's sponsor, Senator Armando Benedetti, is pessimistic about its chances in the house of representatives.

"In the House we confront a problem," Benedetti told me in a November interview in his Bogotá office. "That is the [influence of] the Catholic religion, which always puts its principles above the rights of minorities."

That's why the court is so important, he continued, expressing confidence that the court would clarify its support for same-sex marriages once they begin being performed in June of 2013. "The Constitutional Court, if we're going to speak very seriously, has always been in favor of the disadvantaged, of minorities, of the poor," said Benedetti.

Latin America's marriage movement has been helped by the fact that most countries' courts take international jurisprudence far more seriously than do courts in the United States. Human rights law takes an especially international perspective, since almost every country in Latin America is under the jurisdiction of two human rights bodies within the Organization of American States, the Inter-American Commission on Human Rights, charged with investigating violations of the American Convention on Human Rights, and the Inter-American Court of Human Rights, which adjudicates violations on the recommendation of the Commission. Though the United States, Canada, and a handful of Caribbean nations do not recognize the court's jurisdiction, most of Latin America does.

LGBT rights have been a special priority for the Inter-American Commission since 2011, when it established a special unit dedicated to LGBT rights. Around 50 complaints of violations of these rights are now pending before the commission, according to Victor Madrigal-Borloz, who leads the team responsible for reviewing claims of human rights violations and is the chief technical advisor to the LGBT rights unit. Once the commission begins advancing these cases through the legal process, we could see the pace of change in Latin America accelerate even further.

That could be especially true on marriage rights. Three Chilean couples filed a complaint with the commission in September 2012 after losing a legal battle for recognition in their country's courts. Activists in Costa Rica have also announced their intention to seek help from tribunal after a domestic partnership law died in the country's legislature late last year. A Paraguayan couple who married in Argentina also plan to take their battle for recognition to the Inter-American Court. If these petitions are successful, it could potentially mean the undoing of marriage bans in even the most conservative countries in Latin America. But the court is already proving to be a force for marriage rights even before formally taking up the question.

It handed down its first LGBT rights decision in February 2012 in a case known as Karen Atala y Niñas v. Chile. The case was brought by a lesbian mother who lost custody of her children to her ex-husband because of her sexual orientation. The court's ruling was sweeping, saying for the first time that the American Convention on Human Rights "prohibits ... any rule, act, or discriminatory practice based on sexual orientation."

The significance for marriage rights was tested almost immediately in Mexico. Most Mexican states still refuse to perform same-sex marriages, even though they have been legal in Mexico City since 2010 and the country's supreme court has ruled that these marriages are valid nationwide. Three Oaxacan couples had filed a long-shot challenge to their state's ban on same-sex marriages shortly before the Atala decision was handed down, represented by a law student named Alex Alí Méndez Díaz. As their case headed to Mexico's supreme court, the Atala decision provided an additional powerful precedent on which to make their case.

On Dec. 5, Mexico's high court sided with the three couples and said that marriage could not be restricted to heterosexual couples. Technicalities of Mexico's legal system mean that more lawsuits are still required before same-sex couples can easily marry in every state, but this ruling means that it will soon be possible.

In reaching this decision, the court not only cited Atala, but also two landmark civil rights cases from the United States Supreme Court, Loving v. Virginia and Brown v. Board of Education. Writing for a unanimous tribunal, Minister Arturo Zaldívar Lelo de Larrea invoked these cases in a way that American activists would be overjoyed to see from a justice of the U.S. Supreme Court when it rules on the marriage cases they are now considering.

On Loving v. Virginia, which struck down laws against interracial marriage in 1967, Zaldívar wrote, “The historical disadvantages that homosexuals have suffered have been well recognized and documented: public harassment, verbal abuse, discrimination in their employment and in access to certain services, in addition to their exclusion to some aspects of public life. In this sense … when they are denied access to marriage it creates an analogy with the discrimination that interracial couples suffered in another era. In the celebrated case Loving v. Virginia, the United States Supreme Court argued that ‘restricting marriage rights as belonging to one race or another is incompatible with the equal protection clause’ under the US constitution. In connection with this analogy, it can be said that the normative power of marriage is worth little if it does grant the possibility to marry the person one chooses.”

Same-sex couples in the United States are now waiting to find out if their top court will see this precedents in the same way. But however it decides, there is more at stake than just thee status of American gay and lesbian couples. The justices will be deciding whether the United States will fall behind as its neighbors establish a new standard of human rights, or whether it will join a revolution that is well underway.

This report by APF fellow J. Lester Feder also appeared in Foreign Policy magazine.