Sunday, September 29, 2013

In a first for Colombia, two same-sex couples are granted marriage licenses

Claudia Zea and Elizabeth Castillo were united in civil marriage on Wednesday in a low-key ceremony that remained secret until now
(Photo used by permission courtesy of Paola Zuluaga)
MAJOR UPDATE #1 (Oct. 3, 2013): A judge in Colombia has struck down the first of two same-sex marriages performed in Colombia last week. The move comes after a one man anti-gay organization filed a constitutional challenge against the judge who officiated the first wedding as Colombia Reports reports ("Colombia judge annuls country's first marriage").  And while  Claudia Zea and Elizabeth Castillo remain married, foes of marriage equality have also filed constitutional challenges against their marriage and vowed to challenge every other judge that decides to grant a marriage license to any same-sex couple.

MAJOR UPDATE #2 (Nov. 10, 2013): Since writing this post, lower courts annulled two of four same-sex marriages that have taken place since July. On appeal, though, those annulments were declared invalid as the person who challenged them in court was declared not to have legal standing by a higher court - which means all four same-sex marriages still have legal standing. 

In addition, the person who challenged the judges who granted these marriage licenses though a phantom homophobic organization called the Husband and Wife Foundation was outed as a gay man himself by two former classmates at a Jesuit seminary school ("Leading opponent of same-sex marriages in Colombia outed as a gay man").

CORRECTION: An original version of this post contained the following phrase: "Argentina and Uruguay already allow marriages for same-sex couples and some regions in Mexico and Brazil do the same".  After comments on this post and checking with LGBT advocates based in Brazil I have changed that phrase to read "Argentina, Brazil and Uruguay already allow marriages for same-sex couples as well as Mexico City. Several Mexican states have also seen same-sex couples get marriage licenses through court rulings." Particular thanks for the assistance of Bruno Bimbi, author of the definite tome on how Argentina became the first country in Latin America to pass a marriage equality law ("Marriage Equality"). He currently lives in Brazil and is an expert on the region.

If watching marriage equality advance throughout the United States has been moving and inspirational, the same can be said of Latin America as countries like Argentina, Brazil and Uruguay already allow marriages for same-sex couples as well as Mexico City. Several Mexican states have also seen same-sex couples get marriage licenses through court rulings.

Now you can add Colombia to that list.

In a surprising statement released on Wednesday, Colombian attorney and long-time LGBT-rights advocate Germán Humerto Rincón Perfetti announced that a .civil court judge had declared Julio Albeiro Cantor Borbón and William Alberto Castro Franco "united in civil matrimony" in a ceremony that took place on September 20th.

Then today the leading national newspaper El Espectador announced in its front page that Elizabeth Castillo and Claudia Zea had joined them on Wednesday when a second civil court judge also granted them a marriage license. "I join you in a legitimate civil matrimony with all the prerogatives and rights that civil law grants you and the same obligations imposed by civil law," said the judge before the couple signed their marriage license.

The uphill battle for marriage equality in Colombia has been years in the making and fraught with setbacks and false starts.  Several same-sex civil union bills were introduced during the last decade without advancing legislatively. But a 2011 Constitutional Court ruling ordering Congress to find a way to grant same-sex couples the same rights as married heterosexual couples kicked the ball into motion. The Court left legislators wiggle-room in what to call the same-sex partnership measure and avoided mentioning the word "marriage" but it also said that if Congress had failed to act by the summer of 2013 same-sex couples would then automatically be eligible to apply for civil matrimony.

Congress did take up a marriage equality bill this April but a majority of legislators voted it down and, as the deadline set the Constitutional Court approached, the director if the agency that oversees notary officers throughout the country instructed them not to grant marriage licenses to same-sex couples and offer, instead, a trumped up norm called a "solemn union".

Marriage equality advocates led by Marcela Sanchéz of the LGBT-rights organization Colombia Diversa saw through the ploy and advised same-sex couples to avoid notary offices and instead head to the civil courts.  The reason? Notary officers had been instructed to decline marriage license requests on the spot whereas a civil court judge would have to put in writing their arguments for or against granting a marriage license to a gay couple.

In fact, on July 24th a civil court judge stopped just short of granting a first marriage license while declaring Gonzalo Ruiz Giraldo and Carlos Hernando Rivera Ramírez legal spouses (their spousal union document reads "estado civil: casados" or "civil status: spouses."  After the private ceremony, that particular judge spoke to media and made clear that she had not given them a marriage license.

There have been dozens of same-sex couples that have gone to notaries and officiated their "solemn unions" but the argument from Colombia Diversa is that a "solemn union" is a figure that has never existed and still does not exist in the nation's legal family code.

Colombia Diversa argues that the only existing norm recognizing the same marriage rights as those granted to heterosexual couples is marriage and, in light of the Colombian Congress's failure to act, same sex couples automatically have the right to marry.

But the Colombian government in the form of its Inspector General Alejandro Ordoñez has fought the Constitutional Court and its ruling every step of the way and has used his office to go after gay couples demanding that all notary officers alert him if any gay couple requests a marriage license.

Ordoñez has been so aggressive in challenging these rulings that the Constitutional Court itself has publicly admonished him twice and argued his office has no standing in these matters.

Yesterday the Inspector General's office announced that it would fight to stop these marriages using a fast track appeal legal form called a "tutela".

Lawyer Mauricio Albarracín argues that for a "tutela" to proceed the applicant has to prove these marriages violate a person's rights which Albarracín says will be impossible for Ordoñez to prove.

The issue will probably head back to the upper courts in the future but as of this week Julio Albeiro Cantor Borbon is married to William Alberto Castro Franco and Claudia Zea is married to Elizabeth Castillo.

Marriage equality has come to Colombia.

UPDATE (Sept. 30, 2013): Out lesbian Bogotá councilmember Angélica Lozano just twitted a photo of herself filing a claim against Inspector General Alejandro Ordoñez before the district attorney's office. It reads "Legally denouncing the Inspector General for abuse of authority and arbitrary and unjust acts against gays".

10 comments:

Anonymous said...

So Andres, I don't know what your issue is with Brazil. Saying that "all same-sex couples can marry" in Argentina and Uruguay, while same-sex couples can marry in "regions of ... Brazil" is just not accurate. Credit where credit is due. Equal access to marriage at the national level was declared on May 14, 2013 by a 14-1 ruling of the Judicial National Council. The last time you made this mistake, you responded with a non-sequitur that only Argentina and Uruguay had done this legislatively--as if that changes the facts. What gives? Are you anti-Brazilian? This repeated misstatement of fact is seeming very odd. I would prefer to be celebrating and bringing to light that big Brazil has reached the point of decency to settle this issue in favor of equality.

Andrés Duque said...

Hm, I have no issue with Brazil and would champion it if I knew without a doubt that any same-sex couple could walk into a civil court or notary to ask for a marriage license and get their wish. But as far as I know and have heard, it depends on local municipalities. The JNC might have overwhelmingly voted in favor but until that translates into a national law localities might still disregard the ruling. If that's not the case and I am mistaken please let me know.

Anonymous said...

From UPI at the time: http://www.upi.com/Top_News/World-News/2013/05/15/Brazil-legalizes-same-sex-marriage/UPI-34821368649736/

From the Brazilian press at the time:
http://www.estadao.com.br/noticias/cidades,cnj-obriga-cartorios-a-celebrar-casamento-entre-homossexuais,1031678,0.htm

Wikipedia: http://en.wikipedia.org/wiki/Recognition_of_same-sex_unions_in_Brazil

This isn't complicated, facts are facts.

Andrés Duque said...

And yet I asked a couple of Brazilian friends about it tonight and they say some couples have run into roadblocks an been denied the right to marry.

Anonymous said...

We had an interracial straight couple turned down for a marriage license just recently, but that doesn't change the fact that interracial marriage is legal in the US. In Brazil, notaries issue marriage licenses, and the Supreme Court's committee that governs notaries has ruled that no notary may deny a same sex couple a marriage license. This is the law in all of Brazil. We should be celebrating that fact. Instead, you really seem to be trying to find any way to deny this...and putting factually incorrect statements out that a lot of people read thinking that you are an authority.

Andrés Duque said...

...which includes approving your comments, goodness gracious brazilophobic me. Call me when a marriage equality law passes in Dilma's government.

Andrés Duque said...

Also, where was an interracial couple denied a marriage license in the U.S.? Share link please and, if so, I am sure the ACLU and others might stand behind the couple.

Anonymous said...

Andres, here's the link for the denial of a marriage license to the interracial couple. Of course, the ACLU and many others jumped in to help. The denial was against the law--just like denying a marriage license to a gay couple anywhere in Brazil is against the law.

http://www.huffingtonpost.com/2009/10/15/interracial-couple-denied_n_322784.html

I'm just amazed. By your logic, no law is ever law until it's absolutely perfectly implemented. I'll try one more time. A committee of Brazil's Supreme Court has ruled that no notary anywhere in that country may deny same sex couples a marriage license. The links before include international and Brazilian press reports about the national recognition of equal marriage. This is simply the law. Saying that "regions of Brazil" permit same sex marriage is simply factually incorrect. The list is Argentina, Uruguay, and Brazil. Full stop.

A lot of people rely on you for information. I have seen this blog quoted in mainstream news stories. Putting out incorrect information just shouldn't be happening.

Shax said...

I'm brazilian and I can say all the anonymous comments are true. Same-sex marriage is legal throughout the country. Marriage equality is reality in Brazil in ALL states. However, one judge (or procurador, I don't remember) going rogue in a southern state didn't allow a lesbian couple to get married in his district. But this decision will be appealed and revoked, and the judge will be punished by the CNJ for not follow its decision made last May (the CNJ also act as judges' police). All the judiciary is compelled to follow the CNJ decision. It's Constitutional Law since 2004.

The text of the resolution:

"It is forbidden to the competent authorities to refuse authorization, execution of civil marriage or conversion of a stable union in marriage between people of the same sex"

Source: http://noticias.uol.com.br/cotidiano/ultimas-noticias/2013/05/14/cnj-aprova-resolucao-que-obriga-cartorio-a-celebrar-casamento-gay.htm (in portuguese)

Andrés Duque said...

I have made the following correction as I added to the text of the post:

An original version of this post contained the following phrase: "Argentina and Uruguay already allow marriages for same-sex couples and some regions in Mexico and Brazil do the same".

After comments on this post and checking with LGBT advocates based in Brazil I have changed that phrase to read "Argentina, Brazil and Uruguay already allow marriages for same-sex couples as well as Mexico City. Several Mexican states have also seen same-sex couples get marriage licenses through court rulings."

If I erred on the side of caution it's because I care about this issue whether it's Brazil or anywhere else in Latin America. I apologize to the anonymous reader who was right all along.