High Courts Have Taken a Stand
Written:January 29, 2014
Latin America’s gay rights revolution has highlighted
the ingenuity of gay activists and the leadership of politicians like
Argentina’s president, Cristina Fernández de Kirchner. In July 2010, she
became a gay rights heroine when she signed Latin America’s first
same-sex marriage law, over vigorous opposition from the archbishop of
Buenos Aires (today Pope Francis). But the celebration of activists and
politicians has overlooked another hero in this campaign: the region’s
high courts. Their embrace of gay rights has been nothing short of
audacious, especially in contrast to recent decisions by the U.S.
Supreme Court.
It is striking that the U.S. Supreme Court has yet to find a
constitutional right to same-sex marriage. Last June’s ruling against
the Defense of Marriage Act was relatively narrow: It requires only that
the federal government recognize same-sex marriages conducted in states
where such marriages are legal. It does not invalidate some 30 state
constitutional amendments banning same-sex marriages, civil unions and,
in some cases, even domestic partnerships. By contrast, the high courts
of Brazil, Colombia and Mexico have broadly endorsed a constitutional
right to same-sex marriage, and Argentina was primed to do the same
before stepping back to give politicians the chance to act first.
Judges south of the border built on a decision from U.S. Supreme Court, which struck down a ban on interracial marriage.
So why are Latin America’s high courts acting faster and more
boldly than the U.S. Supreme Court? It is not as if Latin America has a
tradition of gay rights advocacy from the bench. As recently as 1991,
Argentina’s Supreme Court upheld a ban on gay organizations, stating the
government’s need to protect society from pernicious influences.
For a start, marriage laws in the United States and Latin
America stem from distinct legal traditions. Marriage in Latin America
is strictly a civil institution, and as such it is separate from any
religious context, quite unlike the situation in the United States. The
judicial systems in the U.S. and Latin America also operate from
different constitutional frameworks. While the U.S. Constitution remains
remarkably faithful to its 18th century foundations, most Latin
American nations have in the last three decades introduced new
constitutions or wholly revamped old ones. These reforms have made Latin
American constitutions especially sensitive to human rights claims, and
especially inclined to see gay rights as human rights.
Last but not least are divergent stances on international
jurisprudence. Believing that foreign laws should have no role in
shaping American laws, the Supreme Court has traditionally been loath to
consider foreign legal precedents in its deliberations. But the Latin
American high courts have in recent years indulged in “trans-national
legalism” to advance gay rights, by borrowing legal precedents from
other countries, including the United States. The unanimous 2012 ruling
by the Mexican Supreme Court that supported same-sex marriage pointedly
drew upon Loving v. Virginia, the 1967 case in which the U.S. Supreme
Court struck down laws banning interracial marriage in the United
States. The American case, the Mexican ruling noted, “was relevant
because the historical disadvantages that homosexuals have suffered
create an analogy with the discrimination that interracial couples
endured in another era.”