Written by Dinka Benítez Piraino

On May 26, 2020, same-sex civil marriage came into effect in Costa Rica, becoming the first country in Central America and one of 29 countries in the world to recognize it. In contrast, nearly 30 countries around the world punish lesbianism and homosexuality with prison sentences and even death. In Latin America and the Caribbean, only 7 out of 33 countries recognize same-sex marriage: Argentina (2010), Uruguay (2013), Brazil (2013), Colombia (2016), Ecuador (2019), and some states in Mexico[1].

There is no doubt that same-sex marriage in Costa Rica is a historical event and a cause for celebration throughout Latin America.

Costa Rica, and especially its Constitutional Chamber of the Supreme Court, has implemented important changes related to family issues and sexual and reproductive rights within the framework of Inter-American human rights law. For instance, in the decision of the Artavia Murillo case (2012)[2], the Inter-American Court of Human Rights condemned Costa Rica after it banned the practice of in vitro fertilization in 2000. This verdict prompted an unprecedented discussion that ended in the re-legalization of in vitro fertilization; a win for the recognition of personal autonomy, sexual and reproductive health, and the right to enjoy the benefits of scientific progress. This case demonstrated Costa Rica’s commitment to international human rights law over the years. At the same time, it demonstrated the efforts made by the State to recognize and fulfill its human rights obligations.

Similarly, the recognition of same-sex civil marriage in Costa Rica did not happen overnight. The story began when the Costa Rican government asked the Inter-American Court of Human Rights on May 18, 2016, about its interpretation of the recognition of the rights of same-sex couples, which resulted in Advisory Opinion No. 24 on Gender Identity, Equality, and Non-Discrimination of Same-Sex Couples (2018). The Inter-American Court declared, under the American Convention on Human Rights, that States have the obligation to recognize family ties and protect them[3]. As a result, the Constitutional Chamber of the Supreme Court of Costa Rica, in 2018, declared articles of its legal system that preserved different treatment between heterosexual and same-sex couples as unconstitutional. In addition, the Supreme Court urged the Legislative Assembly to allow these changes to its legal framework to go into effect after eighteen months[4]. Eighteen months later, on May 26, 2020, equal marriage became legal in Costa Rica. On this very same day, the first marriage between people of the same sex was celebrated[5]. In Costa Rica it was not necessary to create a new law to have same-sex marriage. The Supreme Court did the job by revising its very own legal framework.

Unlike other countries, the Constitutional Chamber of Costa Rica recognized that the advisory opinions of the Inter-American Court are mandatory for States. For what it matters here, Costa Rica recognized the validity of Advisory Opinion No. 24 on Gender Identity, Equality, and Non-Discrimination of Same-Sex Couples (2018), which is a major breakthrough when compared to other countries in the region.

In contrast, the Chilean Constitutional Court has just rejected a claim of inapplicability (unconstitutionality) very similar to the one that allowed same-sex marriage in Costa Rica[6]. Inapplicability is an exceptional tool used to review the constitutionalism of a specific precept (article), related to a specific case, in the legal system of Chile. In Costa Rica, there is the same kind of legal action but that function belongs to the Supreme Court and it has a general impact as opposed to just affecting particular cases. But the arguments given by the detractors in Costa Rica against same-sex marriage were the same given in Chile: lack of legislative debate and the alleged threat to children’s rights. The difference is that Costa Rica was able to overcome their detractors whereas Chile unfortunately succumbed to them.

Although Chile has legally recognized the existence of same sex couples under the civil union contract, it has yet to include filiation rights (the legal relationship between a parent and child). Specifically, the case rejected by the Chilean Constitutional Court was of a lesbian couple who married in Spain, and only one of the women was legally recognized as the mother of their child. For this reason, the Constitutional Court was asked to review the articles on civil marriage. In this case, the applicants argued that the inability to enter into a legal marriage in Chile resulted in a direct effect on the rights of their child, plus discrimination based on sexual orientation.

Despite the fact that Chile was the first State condemned by the Inter-American Court in a case on sexual orientation in 2012[7], the Chilean Constitutional Court argued in the case that it was not possible to speak of discrimination. The different treatment, said the Constitutional Court, did not lie in someone’s sexual orientation, but the matrimonial institution in Chile as it is the union between a man and a woman. So, in the illogical opinion of the Chilean Constitutional Court, a non-heterosexual person could still get married as long as it is with a person of the opposite sex. Even worse, the Chilean Constitutional Court referred to alleged risks if they declared a different type of marriage to be acceptable. The Chilean Constitutional Court said that if they accepted the arguments given by the applicants for the acceptance of same-sex marriages, it would lead to “intolerable extremes” that they believe occur in other countries, and made comparisons to polygamous marriages in Muslim countries, marriages of children in African countries, arranged marriages in Japan and mass marriages in the Moon sect in South Korea[8].

Shame.

Marriage is a human rights issue, but also an institution under suspicion

Same-sex marriage in Costa Rica is a human rights issue because it means recognition of the existence of diverse families. Same-sex marriage is not just a matter that is of concern for adults but also children since they are born into these diverse families. Decades ago, the legal systems in some countries of Latin America used to maintain differences between children depending on if they were born to parents who were married or unwed parents. In Chile, the distinction was derogated in 1999. However, new legislation that recognizes all kinds of families are reopening arbitrary differences between children, but now the discrimination depends on whether they are born into a same-sex family or a heterosexual family.

Moreover, same-sex marriage is a human rights issue because families continue to be the main institution of States’ public policies. For example, the public distribution of food under the current pandemic circumstances are geared to assist families as a whole rather than each individual member. Hence, as long as the family remains the fundamental nucleus of our societies, the least we should expect is the legal recognition of those who make up these diverse families. However, the romanticism behind marriage, no matter how sincere love may be, conceals a mere patrimonial contract. A contract that serves to obtain social benefits, a contract that serves the right to health, to get tax exemptions, to inherit, to possess. But the dignity of people, and especially the dignity of women and those who identify outside the gender binary, cannot depend on their marital status or family heritage. That is why I say that marriage is, and should be, an institution under suspicion.

In any case, I congratulate Costa Rica. Although the international standards related to family issues and sexual and reproductive rights do not yet permeate the legal systems of all countries, the commitment and persistence of the people of Costa Rica is an example for all of Latin America and the Caribbean. Thanks to its people, dignity will become a habit. Meanwhile, in Chile, we are waiting for the next referendum on a new Constitution due in October. The people of Chile deserve better.

[1] https://ilga.org/downloads/ILGA_World_State_Sponsored_Homophobia_report_global_legislation_overview_update_December_2019.pdf

[2] Inter-American Court of Human Rights, Artavia Murillo v. Costa Rica. Judgment of November 28, 2012. http://www.corteidh.or.cr/docs/casos/articulos/seriec_257_esp.pdf 

[3] Inter-American Court of Human Rights, Advisory Opinion No. 24 on Gender Identity, Equality, and Non-Discrimination of Same-Sex Couples, OC-24/17, p. 191. https://www.corteidh.or.cr/docs/opiniones/seriea_24_esp.pdf

[4] Supreme Court of Costa Rica, resolution number  12782 – 18 Constitutional Chamber, issued on August 8, 2018, https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-875801

[5] https://pj.poder-judicial.go.cr/index.php/prensa/520-juzgado-de-familia-de-desamparados-realiza-matrimonio-civil-igualitario

[6] https://www.tribunalconstitucional.cl/wp-content/uploads/COMUNICADO-DE-PRENSA_7774_28_05_2020.pdf 

[7] Inter-American Court of Human Rights, Atala Riffo and Girls v. Chile. Judgment of February 24, 2012.

[8] Chile, Constitutional Court, judgment of June 4, 2020, Rol 7774-2019, section 23. https://www.tribunalconstitucional.cl/expediente

Please note that blog posts are not peer-reviewed and do not necessarily reflect the views of SRHM as an organisation.