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".

Denunciado penalmente el procurador por abuso de autoridad, actos arbitrarios e injustos contra homosexuales pic.twitter.com/v2iyZBJUPh
— Angélica Lozano (@AngelicaLozanoC) September 30, 2013

Colombia Diversa on yesterday's landmark ruling granting equal rights to same-sex couples

I am still wrapping my brain around yesterday's ruling by the Constitutional Court in Colombia.

Reading the first news brief that appeared online in El Tiempo, it promised less than the article's title implied: "Full recognition from Constitutional Court to same-sex partners."

Yes, the Court had ruled that a series of rights afforded to long term heterosexual partners should be also granted to long term same-sex partners BUT it seemed to stop short of granting civil union or common-law union status (unlike a blurb at The Advocate online implies today).

In fact, I consciously decided not to translate the article's title in my post yesterday because I wanted to make sure that I wasn't misreading the information before calling it a "full recognition" of same-sex partnerships.

Well, after translating the statement below and discussing the ruling with Colombia Diversa's director Marcela Sánchez, I have come to realize that this is much bigger than I originally thought particularly outside a framework that puts same-sex marriage as a measure of full equality.

In fact, Marcela is quoted today by El Tiempo stating that the ruling gives same-sex couples in Colombia "equality".

"We are not putting ourselves above others, instead we were putting [ourselves] as equals," she says, "They are not additional rights but the same (as those of heterosexuals)."

In a brief e-mail exchange I asked if it was truly "equality" and she said "Yes, it is equality; We have all the rights of a common-law union, minus adoption."

She also told me that the organizations that brought the lawsuit before the court made a conscious decision to specifically ask for the rights and not for civil or common-law unions which is the reason why the court did not pronounce itself on those matters.

So, here is a concept: Colombian same-sex partners, following a series of High Court rulings including the one announced yesterday, probably enjoy more rights than same-sex couples in any other Latin American nation with the exception - perhaps - of Uruguay which approved civil unions in December of 2007 - and yet they have achieved this without having yet been granted civil marriage or common-law marriage status?

Just amazing and it speaks to the hard work of hundreds of LGBT advocates throughout Colombian history including my friends Germán Humberto Rincón Perfetti and Manuel Antonio Velandia Mora who did so much in the a980's and 1990's to bring equal rights issues to the forefront in Colombia.

Through their efforts, as well as hat of many others, different same-sex partnership bills have come close to being adopted by the county's legislature (the last one was rejected by the Senate in October of 2008). With yesterday's ruling, passage of such a bill seems predestined.

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Colombia Diversa, the leading LGBT rights organization in Colombia and one of the organizations that asked the Constitutional Court to determine whether same-sex partners should enjoy all the rights of heterosexual partners, released the following statement on yesterday's landmark ruling (I have translated it from the Spanish language original):

CONSTITUTIONAL COURT RULES FOR EQUALITY

Historic ruling by the Constitutional Court in Colombia recognizes equality between heterosexual common law partners and those of the same sex.

Today, January 27, 2009, the Constitutional Court brought the country one step forward - a fundamental one - in matters of human rights. The High Tribunal acknowledged that a number of civil, political, social, economic, criminal and immigration rights, among others - previously reserved for heterosexual couples, also apply to same-sex couples.

In this way, Colombia has made progress in fulfilling its international commitment to incorporate Equality into its domestic legal norms, on behalf of a population that has historically been vulnerable due to their sexual orientation. Eighteen years after the enactment of the 1991 Constitution, [promoting] equality between all people, this principle has effectively been by lifting a series of limitations in Colombia that weighed down on rights, depending to the sexual orientation of individuals.

It was confirmed that equal rights cannot allow qualifications, nor exceptions nor mitigating circumstances that depend on sexual orientation.

Plaintiffs

The path that led to the Court's recent ruling began with a lawsuit. On April 28, 2008, Colombia Diversa, The Law, Justice and Society Study Center (Dejusticia), and The Public Interest Rights Group of the University of Los Andes, filed a lawsuit seeking equal rights between permanent partners, heterosexual and homosexual, and thus eliminate all forms of discrimination.

The lawsuit was actively supported by a diverse group of 32 human rights organizations, most of which do not represent an exclusive advocacy for LGBT rights. Such was the case with Human Rights Watch, the Colombian Commission of Jurists and Sisma Woman among many others (see list). Their primary interest was to bring domestic legislation in Colombia closer to a genuine concept of Equality.

Rights and responsibilities recognized

Specifically, it was a claim of inconstitutionality en masse against a series of laws that guarantee these rights and responsibilities to unmarried heterosexual couples, so that same-sex couples could be included as beneficiaries.

The plaintiffs asked the Court to extend the protections inherent in all rights afforded to heterosexual partners in a common-law union, to same sex-couples. At the same time, there was a request for the same order of duties and responsibilities for both types of couples.

In short, the rights and responsibilities that were demanded and recognized by the Court are related to:

• Civil rights norms which establish limitations to the access and exercise of civil service and the establishment of contracts with the State.
• Civil and political rights, such as housing protections, so that the so-called 'family patrimony' cannot be seized and [establishes] joint family housing rights [la afectación de vivienda familiar].
• Access to a Colombian nationality, and residence in the department of San Andres and Providencia.
• The right to benefits, allowances and compensation measures of a social nature in favor of same-sex couples.
• This is the case with the special social security norms that apply to public law enforcement, family allowance, family allowance for housing, subsidies for rural access to property, and indemnity coverage for death in a traffic accident of a permanent partner.
• Crime punishment and prevention norms, misconduct and the guarantee not to incriminate a partner.
• Rights for permanent partners of victims of heinous crimes.

Here is how EFE breaks it down:

The ruling means that property of homosexual couples that is considered part of the family possessions, including the home, can not be embargoed or distrained.

On the other hand, if a foreigner enters into a same-sex union with a Colombian in Colombia, he or she may obtain Colombian citizenship if and when that union has been under way for more than two consecutive years.

Members of same-sex couples cannot be forced to testify against their partners.

Regarding public officials, when one takes the oath of office, that person's same-sex partner - if any - will also take the office.

Update: Former right-wing congressman Victor Velazquez is incensed! From Colombia Reports (based on this article from El Espectador)

Former congressman Victor Velasquez petitioned the high court to reverse its ruling, accusing the Court it is out of line and should leave legislation about gay rights to Congress.

Velasquez called on the Catholic Church to denounce the ruling and wants a referendum held to let the Colombian people reverse what "undermines the morale of the country."

"With this decision the Court wants to put the country in reverse; the countries that ruled in favor of homosexuals are left without population, because two men and two women can't reproduce," the former lawmaker told the press.

Related:

• Colombia's Highest Court mandates equal rights for same-sex couples (LeonardLink)
  
• Colombia's Constitutional Court grants gay couples full equal rights (Colombia Reports)

Best Spanish language articles so far on yesterday's court ruling...

• Colombia: Gays with additional rights (BBC Mundo, Jan. 29, 2009)
• Colombia: La Justicia ampía los derechos de las parejas hmosexuales (AG Magazine, Jan. 29, 2009)
  

Colombia: One Bogota notary office, a hundred same-sex partnership registrations

Norberto Salamanca might not be a gay but he's certainly seen his share of same-sex couples come through his office doors to request his services.

Norberto is a notary public in a country that relies on notary offices for a wide assortment of legal agreements and Notary Office 76 - which he oversees - happens to be in the heart of the Chapinero neighborhood which is gay central in Bogota.

It's been a year since Colombia's Constitutional Court ruled "that gay couples in long-term relationships should have the same rights to shared assets as heterosexual couples" (AP, Feb. 8, 2007).

The Court indicated that same-sex couples who wanted full control of their joint patrimony (or shared assets) only had to swear under oath and before a notary public to the fact that they had been together for longer than two years.

On Monday, El Tiempo reported that more than 100 same-sex couples had already registered their partnerships at Notary Office 76 during the past year and that it was not the only notary that had registered same-sex couples (Bogota's Notary 40 had 22 on file and Atlantico's Notary Office 1 had seen a dozen couples from cities in the Caribbean coast register their partnerships).

Interestingly, while the Court took pains last year to explain that their ruling should not be interpreted as giving the green light for same-sex civil unions or marriages, some of the couples that have registered their partnerships at Notary Office 76 have made a ceremony out of it.

Mr. Salamanca tells El Tiempo that he's seen couples and guests carrying wedding invites in their hand, reading statements, taking pictures of the event and exchanging rings. Some couples kiss each other to seal the ceremony.

It's not all groovy. Joao Herrera, notary public at Office 1, says that some couples have expressed fears of being seen at the notary and being outed. Mr. Salamanca says that he has received letters in which he has been taken to task for "attempting against morality."

Some notaries, say a few advocates, also have refused to register same-sex couples. But openly gay lawyer German Humberto Rincon Perfetti (above) says that he's been successful in challenging some of the notaries in court when they have refused to do so.

In the meantime, Colombian same-sex partners living outside the country have also taken note of the law. Couples living in Spain, Argentina, Peru, Venezuela and Mexico have traveled to their home country to register their partnerships as well.

Colombia: United Nations backs pension rights for same-sex couples

Pictured right, attorney and gay rights advocate
German Humberto Rincon Perfetti

Yesterday's surprise end-of-session congressional vote and passage of a bill that gives "established gay couples full rights to health insurance, inheritance and social security" was not the only major gay rights victory in the South American country this week.

In a little reported May 14th finding that was apparently only announced this week, the United Nations Commission for Human Rights ruled that Colombia had violated a person's equal right protections by denying him access to the pension benefits of his deceased same-sex partner (I could only find a Spanish language version of the the announcement in the United Nations' website).

The ruling is the second time that the Commission has spoken on issues related to same-sex partners. In Young v. Australia (2003) the Committee held that "Australia, in denying pension rights to the surviving same-sex partner of a war veteran, violated discrimination protections in article 26 of the ICCPR" (Human Rights Watch).

In the new ruling, the Commission stated that the Colombian government "has the obligation of adopting measures to block similar violations in the future" and asks Colombia for "information on adopted measures to comply with the current ruling" within 90 days.

It's unclear when and how the Colombian government plans to respond.

The claim on behalf of the unnamed surviving partner was brought before the Commission by my friend and Colombian gay rights advocate (and attorney) German Humberto Rincon Perfetti (yes, he is a man of many untold names and abilities). He can be reached at rinconperfettigerman@hotmail.com.

These developments follow a Colombian Supreme Court ruling back in February (as reported in the San Francisco Chronicle) that seems to be paving the way for a succession of gay rights victories.

Perfetti, for one, is exploring whether Colombian notaries can legally deny civil union rights to same-sex partners in the wake of that Supreme Court ruling.