Wednesday, March 05, 2008

Venezuela: Top Court says no to same-sex marriages

Considering the escalating diplomatic and military tensions between Venezuela, Colombia and Ecuador - which have gathered wide international attention - few people probably noticed this news:

In a ruling published yesterday by the Supreme Court of Justice in Venezuela, the top court's constitutional wing ruled that same-sex marriages cannot be constitutionally authorized even if the Venezuelan constitution prohibits "any form of discrimination, including that which is based on sexual orientation."

This according to
an article in today's El Universal that says that the justices keyed in on language that elevates marriage between a man and a woman to the constitutional level unlike other forms of relationships.

"The 1999 constitutional body opted to protect monogamous matrimony between a man and a woman - as the essential nucleus that gives origin to the family in the historic and cultural Venezuelan context," said the Court in their ruling, "To extend its effects to common law unions it should require, at the very least, that [common law unions] follow the same essential requirements (stable and monogamous relationships between a man and a woman, that have no impediments to get married and who unite freely)."

And why is this not discriminatory?

"The constitutional norm does not prohibit nor condemn unions of fact between persons of the same gender, it simply does not grant them enforced protection," they say.


In other words, a person can elect to partner with another person of the same-gender if they so desire and have the freedom to do as such but their relationship, according to the Court, cannot be recognized as marriage or through any other form of partnership recognition including civil unions.

The court also argued that same-sex partners who want to protect their common belongings can always do so by signing social contracts establishing shared belongings, particularly when same-sex couples want to determine inheritance rights.


The ruling came four years after the LGBT rights organization
Affirmative Union of Venezuela (Asociacion Civil Union Afirmativa de Venezuela) asked the court to determine if certain constitutional articles discriminated against same-sex couples.

It was not a unanimous decision. In a lengthy and impassioned dissent, Judge Carmen Zuleta de Merchan, says that the rest of the magistrates failed to recognize the implicit rights that the Venezuelan constitution grants same-sex couples and says the ruling is based on social and religious prejudices long ingrained in the Venezuelan society.

She says that the court's ruling is based on the false assumption that only heterosexual couples can raise families when in reality there are many same-sex couples raising healthy and happy children and that the traditional family model that the other magistrates chose to elevate ignores a Venezuelan reality for other types of families, including that of the 20% of homes comprised by single women who are heads of households.


Finally, she says that it is inadequate to simply tell same-sex partners to seek legal contracts in order to protect their common belongings since these contracts are not established by family law.

The full text of the ruling can be found here.

It's an unfortunate outcome.

UPDATE: More analysis from Katy at Caracas Chronicles here, though she thinks the court made the right decision.

2 comments:

Anonymous said...

I'm not sure I understand what the ruling is saying.

Is it saying that the COURT can't institute marriage equality by judicial decree or are they saying that there is NO way to bring about gay marriage or civil unions in Venezuela even if the government wanted to legislate it?

Andrés Duque said...

That is also unclear to me. Though I assume that any effort to bring legislative recognition of marriages between same-sex couples might ultimately be challenged and face this Supreme Court ruling? If that's the case I have a feeling that the ruling means the later. Any constitutional experts want to take a stab at it?