Gay rights sweeping Across the Americas

BY J. LESTER FEDER |
JANUARY 24, 2013

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 is currently facing
a recall in part because of 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.

This year, the U.S. Supreme Court is weighing exactly the
same questions that Mexico’s court has already resolved. But the U.S. justice
system is fiercely resistant to considering legal decisions from abroad.

When the justices take up the gay marriage cases in March,
there will be more at stake than the status of American gay and lesbian
couples. They 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.