The Vicissitudes of Same-Sex Marriage in Colombia

On April 6th, 2016, the Colombian Constitutional Court ruled, once more, in favor of equal rights and full citizenship for LGBTI Colombians.  In a 6 -3 vote, the Court’s majority opposed a justice’s opinion that denies the right of same-sex couples to civil marriage. A new ruling from the High Court is expected in the forthcoming weeks to declare that the refusal from judges and notary public for same-sex couples to access civil marriage is discriminatory.

“It has been a bumpy road, with several bills failing in Congress,” says María Mercedes Gómez, Regional Program Coordinator for Latin America and the Caribbean at OutRight, “but this decision pays back for many years of local activism and confirms the central role that the Constitutional Court has played in advancing the rights of minorities in Colombia.“

The backstory of the court’s ruling...

In 2011 the Court ruled that same-sex couples constitute “family” and ordered the Congress to regulate same-sex marriage by June 2013. The Congress failed to do it, so, in the lack of regulation, the Court authorized judges and notary publics to execute the contract. However, in the last two years, while some judges and notary public have performed around 40 civil marriages, many others have resisted their duty or have done it poorly issuing discriminatory contracts that are not in accordance with the full protections for the family that the Constitution guarantees since 2011.

One of the main obstacles for the implementation of same-sex marriage in the country, as Colombia Diversa and other groups have denounced, is the persecution that the Attorney General embarked on against public functionaries, LGBTI jurisprudence and policies, civil society groups, same-sex couples and supporters. For an account of the Attorney General Office’s actions against same –sex marriage in Colombia see: "Procurador persiguió sistemáticamente a parejas del mismo sexo durante el 2013."

It is possible to say that Colombia had the constitutional potential for same-sex marriage since June 2013, however, the obstacles that couples faced to enjoy the full status that comes with it led four couples to present their cases before the Court for review.  The Court agreed to rule again and we witnessed on April 6th the most solid step towards recognition of same-sex marriage in Colombia.  For an overview of the cases that led to the decision see: "Los 4 casos que Corte Constitucional discutirá en audiencia pública sobre matrimonio gay."

This new ruling will protect, once and for all, LGBTI families with identical rights and duties as heterosexual families. In November 2015, the Court declared it unconstitutional to reject an adoption claim based on the sexual orientation of the petitioner. Yesterday, the Court was coherent with this ruling by confirming that the sexual orientation of a person cannot be a source of discrimination in accessing marriage.  This is a great victory.

As German Rincón Perfetti, a well-known activist and lawyer for one couple states,

“The real winner in this decision is democracy, because democracy is not about the power of the majority but about recognition and validation for all, including all minorities.”

By the same token, Macarena Sáez, director of the Human Rights Center at the Washington College of Law at American University, lawyer for Karen Atala at the IACHR in Atala Riffo and daughters vs. Chile and one of the participants in the same-sex marriage hearings at the Constitutional Court in Bogota in July 30 2015, says,

Featured image by Diego Cambiaso

“Although we have to wait for the final decision containing the Court’s opinions, this is an historic moment worth of celebration. This is a victory not only for the direct beneficiaries of the decision; today Colombia is a better place and a model for the region.”

OutRight congratulates the LGBTI activists and the couples that advanced their cases to make a difference for all of us, in particular, we warmly celebrate this victory with our long time colleagues and friends at Colombia Diversa, winner of the 2010 Felipa de Souza Award, and with Germán Rincón Perfetti for their leadership and resilience in this and other fights.