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Colombia following Canadian / South African path to gay marriage | Hunter of Justice

Colombia following Canadian / South African path to gay marriage

by on August 9, 2011  •  In Marriage

In Colombia, the countdown has begun on the two years that the Constitutional Court gave Congress to extend marriage rights to gay couples. The Constitutional Court ruled late last month that Columbia’s gay and lesbian citizens currently lack the full set of rights afforded to heterosexual married couples in Columbia, and instructed the Columbian Congress to pass a remedy through “comprehensive, systematic, and orderly legislation” by June 20, 2013 to address the imbalance. The court’s ruling added that should country’s lawmakers fail to pass legislation within that time, LGBT couples will be permitted to go before a notary or a court to have their partnership officially recognized.

The combination of a determination that exclusion from marriage is unconstitutional and a decision to, in essence, punt the case to the legislature to fashion a remedy is not new. In 1999, after this kind of ruling in its state supreme court, Vermont adopted a civil unions law. (The Vermont legislature has since amended its marriage law to allow same-sex couples to marry.) In Canada (2005) and South Africa (2006), the Parliament established the right of same-sex couples to marry after the courts directed it to act.

In the past, the Colombian Congress has failed to enact protections for gay couples despite judicial rulings. In February 2007, the Constitutional Court of Colombia extended several common-law marriage property rights to same-sex couples. In April and June, the two chambers of the Congress of Colombia approved a same-sex couples bill, which would have been the first in Latin America, and then-President Uribe was expected to sign it. A few days after the June vote, however, a group of conservative senators broke party discipline on what is usually a routine vote on the final reading of a bill and defeated the measure by five votes.

In 2009, the Constitutional Court weighed in again, with a decision declaring that cohabitating same-sex couples must be given all of the same rights as unmarried heterosexual couples receive in common law marriage. These include nationality, residence permits, testimonial privilege, and inheritance. No legislative action was needed for this ruling to be implemented. (Brazil's Supreme Federal Court rendered essentially the same kind of ruling earlier this year, declaring that same-sex couples could establish what Brazilian law recognizes as "stable unions.")

Now the Colombian court is leaning on the legislature to finish the job and amend the marriage law, making this issue one of the major flashpoints in national politics.

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2 Responses to Colombia following Canadian / South African path to gay marriage

  1. Michael August 9, 2011 at 12:26 PM

    Thanks for this great post. I believe one of the most significant aspects of the Colombian Court’s latest ruling is that it appears to hold that same-sex couples may constitute a “family” for constitutional purposes. Prior rulings from the Court (even pro-gay rulings) had expressly held the opposite, which limited the number and nature of the rights the Court was willing to recognize for same-sex couples.

    In this respect, the Court is following the European Court of Human Rights, which recently did a similar about-face on the “family” issue and now holds that same-sex couples are “family” under the European Convention. The Mexican Supreme Court, interpreting the Mexican Constitution, adopted a similarly LGBT-inclusive understanding of “family” in 2010, though it had never opined on the issue before that, so it wasn’t changing its stance like the ECHR and the Colombian Court.

  2. Spanish Prof August 23, 2011 at 1:13 PM

    As far as Latin America goes, Argentina’s Congress legalized same-sex marriage in July 2010: link to en.wikipedia.org

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