Argentina: Highest Court ready to back same-sex marriages, says justice, but there's one caveat...

As you might remember, on December 28th, Alex Freyre and José Maria Di Bello became the first gay couple to ever receive a marriage license in all of Latin America. Their victory came after years of struggling with the Argentinian courts and with much help from marriage equality advocates, including the Argentinian LGBT Federation.

Previously, the country's Supreme Court had indicated that they would take up the question of whether denying marriage rights to same-sex couples was unconstitutional and, in the wake of the surprising wedding announcement, they reaffirmed their intent to take up the issue later this year.

In the meantime, last year there was an aborted effort to bring a marriage equality bill to the country's Parliament and strong indications that there would be another push this year (there have been efforts to do so since 2007).

Now, in an extraordinary front page article that ran yesterday in Argentina's Pagina/12, the paper takes a look at both the Parliamentary and the judicial paths to marriage equality in Argentina and it begins with quite a bombshell ("The Two Roads to Gay Marriage") .

"The judicial decision is quite simple, that's not the problem" says an unnamed source, "it's a clear case of supervening unconstitutionality, the same thing happened with joint divorce".

The problem, according to the unnamed source is this:

"What is difficult, what is doubtful (he weighs), is whether we should dedicate ourselves to rule on any of the files we have, or if we [should] wait for Congress to debate the law."

Those words coming from any anonymous source would be almost meaningless but when the source is identified as one of the seven Supreme Court Justices in Argentina they are simply stunning. Basically, the unnamed justice is saying that the Argentinian Supreme Court is all but ready to rule in favor of marriage equality but also seem willing to wait for issue to go through the Parliamentary process.

Mario Wainfeld, the reporter for Pagina/12, says he was surprised that a sitting Supreme Court Justice would agree to discuss an issue that was on the docket and still unresolved. He was even more surprised, he says, by what he described as the vehement insistence by the judge that the outcome of the Supreme Court's decision would be "easy" and fall in the favor of same-sex couples.

It's not clear whether there are enough votes to pass a marriage equality bill through Parliament, particularly in the Senate, and the reporter says that the judge agrees with that statement. Without a tape recorder to capture the conversation, the reporter paraphrases the judge's comments:

Judge: If that is the case, it would be better to wait for the topic to be aired through society and through the Parliament. Of course, if the bill doesn't advance or it's delayed, the Tribunal would have to decide.
Reporter: In that case, would it be that easily resolved? (reporter insists).
Judge: The file would have to be passed around, there are some strong individuals here, each one will want to establish their position, it's a historic decision. But it is almost certain that there will be majority support.

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Bizarre. The last time I remember a judge from the highest court discussing a case on which the court had yet to rule was when Peruvian Constitutional Court Justice Carlos Fernando Mesias Rámirez went on Peruvian television to argue that a ban on gays in the military might violate the Peruvian constitution. The court went on to decide just as much six months later.

But how would you feel, as a member of the highest court, if another member spoke to media about a case on the docket and predicted that a majority of the court would vote in one way or another? I hope he or she knows exactly what he or she is doing, because I can see how those comments might back-fire easily. At the same time, though, the interview was probably arranged in advance with accompanying prerequisites (the judge could be identified as a judge but not by name, no tape recorders, etc.). What if it was meant to send a message to the legislative branch as they mull taking up the issue once again?

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The Pagina/12 article then takes a look at previous efforts to bring a marriage equality bill to the Argentinean Parliament (see my previous post: "Argentinean president-elect Cristina Fernández de Kirchner coy on LGBT issues, activists split on same-sex partnership strategies").

The current President, Cristina Fernandez de Kichner and her government come out as duplicitous and opportunistic on the issue (that's her with the violin and her husband and former president Nestor Kichner, who now backs marriage equality). I have never been a fan of President Kirchner on LGBT rights and the article confirms some of my hunches and reservations.

From the article:

Also simple and brief is the bill that came within a hair of being taken up by Parliament last year. It's being sponsored by, among others, deputy Vilma Ibarra (New Encounter party). It calls for the reform of a single article in the current Civil Code. Where it is established that an essential prerequisite for marriage is the "freely expressed full consent by man and woman", it would substitute "man and woman" for "persons of the same or different gender". The rhetoric economy of the modification is not due to chance or negligence. It seeks to underline the equality of every person, in their civil rights.

The Front for Victory party (FpV) joined the initiative at the end of last year until it was resolved from the Pink House that it should be delayed [Buenos Aires' Pink House is the equivalent of DC's White House]. It came on the eve of president Cristina Fernández de Kirchner's trip to the Holy See. Her Chief of Staff, Anibal Fernández, according to rumors by opposing MP's and fellow party members, suggested that it was inopportune to move ahead just before the imminent meeting between Férnandez de Kirchner and her Chilean counterpart, Michelle Bachelet, with Pope Benedict XVI to commemorate the mediation by John Paul II that averted war between the two countries. Having engaged in the ceremony and averted any alleged embarrassment to the Pope, the ruling bloc has the intention to join the move. Their support is necessary, although not sufficient. It's already known that it doesn't have its own quorum but it's the largest minority; their numbers and their discipline ensures an important number of loyalists. They won't all be from the same party, because it deals with one of those so-called "question of conscience" norms in which legislators are allowed to deviate from party discipline.

The ruling party strategy is to build a progressive platform agenda to revamp its image and start to weave alliances, even if they are contingent, with center-left parties. And, by the way, try to regain the support of progressive citizens.

As a matter of fact, Nestor Kirchner, a former Argentinean president and husband of the current president, officially announced his backing for the marriage equality bill earlier this year (echoes of Bill Clinton backing marriage equality last year while Hillary has yet to do so)..

Ultimately, the article says, the topic is heading to Congress and it's certain that, if rejected by the Congress, the Supreme Court will have its say. If that happens and the high court rules in favor, the civil code will remain on the books. Same-sex couples who have brought their demands to the highest court in the nation would be allowed to marry but other couples would have to take their case to the courts and wait to be granted marriage rights on a case by case basis.

Picture that: A ruling presidential political party, which is in trouble with its progressive branch, unabashedly - if opportunistically - embracing marriage equality as a progressive calling card.