The ‘M’ Word

By: The City Paper Bogotá
October 4, 2011

After giving the issue a pass in 2010, in July the Colombian Constitutional Court ruled on the question of samesex marriage… sort of.

Taken from The City Paper Bogotá

The unanimous 9-0 ruling was a mostly pro-marriage equality decision. The Court said that same-sex couples can constitute a “family” and told Congress that they must regulate marriage rights for gay couples, granting them the exact same rights as heterosexual couples. It said that if the Congress fails to do so, those equal marriage rights will automatically kick in on June 20, 2013. From that date on, samesex couples will be able to go to any notary public in Colombia and formalize their union. It is unclear if it would be called marriage or not.

While frustrated that the Court didn’t make an immediate and final ruling, gay rights advocates nevertheless mildly celebrated it. And during the weeks immediately following the decision, the Colombian news media carried a constant barrage of stories about the possibility of a referendum to defeat same-sex marriage, legislative proposals on the issue and the threats and concerns voiced about the issue from various notary publics.

So where are we now and what’s likely to happen?

First, some background 

Pro-gay initiatives at the legislative level in Colombia have had a dismal track record. A couple of years after an initiative by controversial Sen. Piedad Córdoba failed, a breakthrough seemed to come in 2006 when a bill on property, social security and other rights was passed both in the Senate and in the lower House.

Sponsored by Sen. Álvaro Araújo, an “Uribista” from the Atlantic Coast, the legislation had support from all of the major parties except for the Conservatives and the evangelical Christian parties. It was an impassioned debate with most arguments from opponents originating from the Bible. The story of Noah’s Ark was even brought up (the animals were brought on board the big boat in heterosexual pairs one Senator stated). The measure passed the Senate by a vote of 49-40. It later sailed through the Cámara by a vote of 62-43, marking the first time a gay rights measure had ever been approved at the national level and catapulting Colombia as the most progressive country in Latin America in terms of gay rights. Having passed both chambers, the bill which provided same-sex couples with the same rights as non-married heterosexual couples (like a common-law marriage) would become the law of the land. Except it didn’t. Members from Christian and other opponents aligned with the Uribe government sabotaged the conciliation of the two bills, a normally routine affair, and despite having passed both chambers, it was killed behind closed doors. It was an unprecedented assault on the democratic process.

Having been betrayed by the nation’s legislators, gay rights activists changed their strategy, exclusively focusing on the judiciary. That would prove to be a wise move. The Constitutional Court would rule in favor of the gay rights movement on various occasions.

The first victory came in February 2007 when gay couples finally won property and inheritance rights previously reserved exclusively for non-married heterosexual couples. To obtain that right there is no need to go to any notary public – it is automatic after two years of living together. Later that year, social security benefits were authorized for same-sex couples and in 2008 the Court ruled in favor of pension benefits. In January 2009, another decisión came from the Court, granting same-sex couples over 42 additional rights, such as visas for same-sex spouses.

 For many in the gay community these newly won rights were enough. Non-married heterosexual and homosexual couples would be treated practically the same under the law. However the right of marriage would provide immediate protection (no need to wait two years) and would be universally understood. It would also, most certainly, affirm gay couples’ rights to jointly adopt children, something that was not mentioned in the court victories.

In Congress’ hands

Congress of Colombia

Within weeks of the ruling in July, four legislative proposals had been announced. Two of the four proposals, including one sponsored by Sen. Armando Benedetti of the U Party and Rep. Alfonso Prada of the Green Party and the other sponsored by Sen. Miguel Gómez, head of the U Party, call for a new civil unión figure for both same-sex and heterosexual couples, which would have exactly the same rights as marriage except for adoption. The third proposal by Liberal Party Senator Guillermo Rivera would change the definition of marriage from one man and one woman to a contract between two people but with no right to adoption. A fourth proposal by the Polo Democrático sponsored by Reps. Alba Luz Pinilla and Iván Cepeda is by far the most progressive: it authorizes both equal marriage rights and joint adoption rights.

Discussions are under way to possibly consolidate those legislative initiatives. They could be characterized as the pro-marriage proposal (the Liberal-Polo position) and the civil union proposal (Green-U position).

Although there was talk by the Conservative Party about banning both gay marriage and abortion by changing the Constitution through a referendum, that effort appears to have lost steam.

Outlook

What are the chances that Congress will actually pass a marriage equality bill? Gustavo Osorio, an attorney who has served as a consultant to gay rights group Colombia Diversa, believes that it is unlikely that Congress will pass any legislation during the next 20 or so months. “The 300 members of Congress are not an intellectual or moral elite, but rather a group that represents the average thinking of their electors. And the majority of the Colombian people do not believe in expanding the definition of marriage,” he said. He finds the situation that the Congress is in to be a strange one, as the Court has told the Congress what kind of law that they must approve. “This shows once again that the Court wants to have the last word. If the Congress thinks differently about the issue, it would be struck down as unconstitutional by the Court.” Nevertheless, he predicted that there will be attempts to show the people of Colombia that the Congress is indeed engaged in the issue, even if they will most likely eventually fail.

In a statement released following the ruling, Marcela Sánchez also expressed skepticism about whether Congress would enact any marriage equality legislation. “Given that the Colombian Congress has not been, nor will be, a place to guarantee rights for the LGBT population, this means that in reality the most probable outcome is that the final verdict on marriage equality has been delayed, and that same-sex partners will be able to get married starting June 20, 2013,” it read.

Sánchez says that marriage rights must be the same rights – with the same name. “We don’t accept legislation for civil unions or the same rights with different names.” She likens that to the “separate but equal” policy in the U.S. South in which buses, theaters, beaches and even water fountains were segregated.

The next struggle

While marriage equality appears to be coming to Colombia in 2013, there remains one contentious area that must be resolved: joint adoption of children by same-sex couples. The Court is expected to take up the issue soon. And since it ruled in July that gay couples can be considered a family, one would expect them to rule favorably about the adoption issue. Gay individuals have had the right to adopt in Colombia since 1991.