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Marriage Equality Debate In Colombia – What You Need To Know

April 16, 2013

UPDATED

The Colombian Senate will vote Tuesday April 23 on a proposed law to give same-sex couples equal legal marriage rights (“marriage equality”). The debate began on April 17, but was adjourned because the Congressional TV channel had to switch to the House of Representatives and Senators favored having the historic discussion on live national TV.

As designated by the bill’s sponsor, Senator Armando Benedetti, I was proud to argue from the well of the Senate that marriage is a human right protected by international human rights guarantees.

[My Report to the Colombian Senate that Marriage Iguality is a Human Right] 

I was one of four non-Senators invited into the debate (the others were the mother of a gay man and two religious conservative opponents). One of the religious speakers was so disgusting and disrespectful that he was jeered by Senators and stopped by the Senate President. I followed him, and in response to his claim that gay men infect world with disease, I began my address to the 90 Senators present saying, “Relax, I am not here to infect you but to inform you.” It was a great honor and it was humbling to know that my family and friends were listening and supporting me, as were countless Colombia LGBTI people (many of whom sent me tweets and messages – thank you!)

The debate was marked by stereotypes and myths, particularly that same-sex couples should not be allowed to be parents, as expressed by the Senate’s President and the leaders of its biggest parties. The vote would be close but these leaders are requiring the parties to vote against the bill, not with their conscience. I received many expressions of support, and some in continued private dialogue, from many in those parties (the “U” and the Conservative parties).

Same-sex couples in Colombia are needed to come out publicly and support the bill and be heard in the press and in their families and workplaces to demythologize the hate rhetoric. There is a lot of misinformation and little logic in this very religiously dominated and heated discussion.

Multinational companies that backed marriage equality in the US Supreme Court should join us in calling on Colombia and the remaining countries of Latin America that do not yet support marriage equality to allow same-sex couples to take the same vows and enjoy the same rights and duties as opposite-sex couples.

ORIGINAL POST:

Here’s what Colombian Legal and Business Leaders need to know.

(For Spanish speakers, version español. You can also read my testimony to members of the Chilean Senate and to the Chilean Institute of Human Rights. Se puede leer mi discurso pronunciado a miembros del senado de Chile y el Instituto Chileno de Derechos Humanos.)

    Why Is This Debate Happening Now?

The Colombian Consitutional Court issued a ruling in 2011 (Sentencia C577/11) that requires the Congress to act by June 20, 2013, or else same-sex couples can present themselves to legal notaries to contract for their legal rights. The Court ruled that same-sex couples have equal legal rights to found a family, but there is a “deficit of legal protection” for such couples under current law, and ordered the Congress to eliminate that deficit by June 20, 2013. The Court previously ruled that the right given to heterosexual couples to a legally recognized non-marital union must be accorded to same-sex couples.

Some people claim that the Colombian Constitution and Civil Code refer to marriage as between a man and a woman, but this doesn’t make the point they think. Both were adopted when there was no consideration of same-sex marriage, and therefore it cannot be said that same-sex marriage was intended to be prohibited. Furthermore, neither provision says “only” a man and a woman can contract marriage.

More importantly, Art. 13 of the Constitution guarantees equality before the law. (This is also a human right guaranteed by the American Convention on Human Rights, which is binding on Colombia. See more about this below.) To allow marriage equality is to reconcile the marriage and equality clauses; to prohibit same-sex marriage is to ignore the equality clause altogether and to invent an intention for the family clause that never existed.

    Marriage Equality is Good For Business.

In the United States Supreme Court, a large group of well-known employers filed a brief arguing in favor of marriage equality. They include, among others:

Abercrombie and Fitch, Adobe Systems Incorporated, Advanced Micro Devices Inc., Aetna, Alaskan Airlines, Alcoa, American International Group, Apple, Cisco Systems, Clorox, eBay, Facebook, Goldman Sachs, Google, Hewlett-Packard, Intel, Levi Strauss & Co., Marsh and McLennan Companies, Morgan Stanley, NCR Corporation, Nike, Office Depot, Oracle, Qualcomm, McGraw-Hill Companies, Tiffany and Co., Xerox

Dozens more have announced they would have signed on to the argument. (So have a number of religious groups, and even some football players!)

These firms all have experience as employers being forced to implement separate systems of employment and benefits for same-sex employees and their partners, which offend their corporate policies of equality and advancement and competition based on merit alone. Those policies exist for a reason: to attract and promote the best workforce and clientele. Simply put, bigotry is bad for business.

    Same-Sex Couples Are No Worse and No Better Parents

There is a “scientific consensus” by sociologists, pediatricians, doctors, pyschiatrists, psychologists, and social workers that the sexual orientation of parents has no effect on the sexual orientation of children or on children’s aptitude, happiness, or any other measure of performance. The leading, most respected organizations in these fields presented their research findings and official positions to the Supreme Court of the United States in favor of marriage equality, including:

American Psychological Association, American Academy of Pediatrics, American Medical Association, American Psychiatric Association, American Psychoanalytic Association, National Association of Social Workers

Anyone who says LGBTI people are worse parents, or that children will be harmed by marriage equality, is simply wrong on the science, probably because of some stereotype or myth. In fact, most same-sex couples have to be more intentional and plan when they have children, because they have to adopt (requiring approval) or use assistive reproduction (usually requiring counseling).

    Marriage Equality Is Important to Colombia’s Remarkable Progress

Colombia has made a remarkable comeback from a nearly failed narco-state, and in so many respects is a leader in Latin America.

The Americas, in turn, are in the vanguard when it comes to marriage equality. Canada, Argentina, and now Uruguay permit same-sex couples to marry, as do many states in the US, Mexico, and Brazil. In Mexico and Brazil, same-sex marriages are recognized nationally. Altogether (see the table at the end of this article), approximately 35% of the population of the Americas lives in a nation or political subdivision that permits same-sex couples to marry, and another 30% lives where same-sex marriages from elsewhere are officially recognized. That’s almost 70% of the Americas where same-sex marriage is okay.

Will Colombia be a forward-looking and fair country, or retrograde, unfair, and even violent?
The marriage equality debate has been marked by valiant actions, for example by Sen. Benedetti, the courageous and well-informed sponsor. It has also been an embarrassment for some, like Colombia’s chief human rights defender, the “Procurador,” Alejandro Ordoñez. He launched a personal, religious-themed campaign against the legislation, at public expense, even though he has no official role in legislation. The Senate President Roy Barreras was exposed for signing an agreement with an evangelical leader not to allow marriage equality to be voted upon or become law.

President Santos has timidly remained officially silent on this issue, when his counterparts in France, the US, Uruguay, and England, among other countries, have recently been admirably supportive. The Chief of State cannot avoid this important national political and legal issue.

If it fails to align with the “first world” countries and major multinational corporations supporting marriage equality, Colombia will marginalize itself as a backward-facing country whose progress has halted.

    Isn’t Marriage All About Procreation, And Same-Sex Couples Can’t Procreate?

This is false and steretypical in many ways.

People who don’t want to have children can marry – except same-sex couples.

People who cannot have children can marry – except same-sex couples.

People who already have children can marry – except same-sex couples.

People who want to adopt children can marry – except same-sex couples.

People who want or need reproductive assistance can marry – except same-sex couples.

People who marry and don’t procreate don’t lose their marriage rights, while same-sex couples who do procreate or adopt children can’t get married.

If marriage is meant to provide a stable legal and economic family unit, only same-sex couples don’t get to enjoy it. And those same-sex couples with children — many exist, of course — are not able to provide that legal stability and protection to their children.

Besides, many opposite-sex couples make terrible families. Huge percentages of children are born out of wedlock, divorce rates have been steadily climbing, families have been abandoned by growing numbers of fathers who don’t pay child support (there is even a term for it – “deadbeat dads”), and rates of marital infidelity have been climbing. Yet the state does nothing to prevent poor procreators from marrying – it only prevents same-sex couples from marrying. All same-sex couples are not worse parents than the worst opposite-sex couples.

So marriage is not exactly linked to procreation. That argument is a sham, to mask the truth that it is only meant to exclude same-sex couples from legal marriage. It is not meant to help children, it is meant to denigrate, dehumanize, and demean LGBTI people. Perpetuating marriage exclusion means perpetuating centuries of violent oppression and marginalization of lesbians and gay men. More hate crimes are committed because of sexual orientation than any other cause. This is known as “homophobia,” and the world will be a better place, and Colombia will be a more decent country, when homophobia is gone.

    Religion Does Not Teach That Marriage Has Always Been Between One Man and One Woman

Law is separate from religion, first of all. Freedom of conscience is a guarantee against limitations imposed simply because of the religious precepts of one or another group. Such limitations prevent the free exercise of religion by folks like my (Colombian) husband and me, whose religious views support and encourage same-sex couples to make lasting commitments of love and fidelity before God.

In any event, polls show that religious people actually support marriage, it’s just their loud religious leaders who don’t.

That said, readers of the Bible will find it upholds numerous examples of marriage, including polygamy and incest, that violate the one man/one woman principle. Much is said in the Bible in support of slavery while nothing is said against same-sex couples having committed, loving relationships. Jesus never said a word about homosexuality. No one who claims Biblical authority can cite a single passage in which the Bible requires marriage only between one man and one woman. So this argument is not only legally invalid, it is factually wrong in every way.

In any event, what Jesus taught is to love one another, to forgive and be forgiven, and that only he who is without sin should cast the stones of Biblical punishment on others.

“Natural Law” Does Not Limit Marriage to One Man/One Woman

“Natual Law” says what is natural should be legal, and what is not natural is not legal.

What nature teaches us is that man and woman were created, who naturally love each other; and, in the same way, millions of gay men and lesbians were created and exist in nature, and members of each group naturally love each other. So the “natural law” argument actually requires that we recongize and celebrate equally the love that same-sex couples naturally have for each other. That is natural. What is unnatural is homophobia.

In any event, “natural law” can be misapplied and misinterpreted for offensive reasons. Natural law has been used to justify slavery, the inferiority of women, and that people should not be able to have certain kinds of consensual adult sex.

The applicable law is not natural law but the Constitution and the American Convention on Human Rights, which guarantee equality, the right to found a family, and religious freedom

    Why Same-Sex Couples Can’t Accept “Solemn Unions”

Some well-intentioned people, seeking compromise, ask this question, but it doesn’t take long to discard it as insulting.

If “solemn unions” were equal to marriage, they would be called “marriage.” They are not called the same because they are not the same, in many ways. Solemn unions, or civil unions, are proposed only to prevent same-sex couples from being legally married, from being considered legally married, from having the social status created by law for legally married peoples, and to prevent them from having the stability and protection of legal marriage for their family units.

Civil unions have been a failure everywhere, most recently in France and England, which have approved marriage legislation. They are confusing – how many rights like marriage do they include? Which ones? Aren’t the answers different in different places? Are they recognized in other jurisdictions like marriage?

There are numerous documented circumstances where these were real questions. Several fit this description: a person is taken to the hospital, that person’s same-sex partner arrives and tries to help or comfort them, and the hospital denies access because only family members – spouses – are permitted. The person dies, and the tragedy is magnified by the ghastly dehumanization of both patient and partner.

Why would any well-meaning person intend to inflict such harmful doubt on same-sex families? Upon honest reflection, they can’t.

“Separate but equal” facilities were offered by racist governments and others in the US as part of a “massive resistance” against racial integration. Such back-of-the-bus and “whites only/blacks only” separate arrangements were hideously unequal, dehumaninzing, and demeaning. Their plain intent was to reserve the best for whites and to pay lip service to equality. “Apartheid” operated similarly. Just like homophobia, both of these separate-and-inferior institutions produced and maintained an atmosphere that legitimized violent attacks and degrading treatment on the inferior, separte-but-supposedly-equal, people.

    But what about “careful progress” — adopting change only slowly?

This argument should embarass anyone who makes it, because it admits that there is harmful inequality but at the same time deliberately withholds the remedy without a clear and compelling reason, just uncertainty.

    Marriage Equality Is Actually A Pretty Conservative Concept

England’s Prime Minister David Cameron said “I don’t support marriage equality despite being conservative, but because I am conservative.” Marriage is about love, to be sure, but it is also about making solemn vows of support and fidelity, it is about commitments that establish and sustain a family household. Dozens of lawmakers who opposed equal marriage rights in the US and Europe have announced their regrets for their hate-filled messages now that they see how same-sex couples are truly building families.

    “Gay rights Are Human Rights”

These are the now-famous words of Secretary of State Hillary Clinton, in Geneva in 2012.
Human rights are defined by international agreements like the American Convention on Human Rights. That famous charter guarantees:

Equality under law (Art. 24)

Fundamental rights (marriage and family, privacy) (Art. 17.1, Art. 17.2)

Religious freedom (Art. 12)

The government of Chile denied these human rights when it denied marriage applications by Chilean couples (including couples legally married in Canada and Argentina).

Currently, I lead a team of 25 lawyers at my 350 lawyer firm, as co-counsel — pro bono (free as a public service) to the leading human rights lawyer in the Americas, Ciro Colombara, denouncing Chile’s actions. We filed a formal complaint to institute proceedings at the Inter-American Commission on Human Rights against Chile and to secure marriage equality throughout the Americas. We expect to add more countries.

Our case has already had positive effects: Michelle Bachelet, the leading contender for President in Chile, like many other pre-candidates, now fully supports marriage equality. I fully expect that we will be able to withdraw our complaint against Chile, because Chile will adopt marriage equality, like all progressive American countries.

What will the Colombian Congress do? Will we have to denounce the Colombian Congress for violating human rights that the Constitutional Court has ordered the Congress to protect?

As a lawyer who has devoted a lot of time and passion to promoting law and business in Colombia, as a man who married a Colombian man in a wedding in a major church in New York City with both families fully present and supportive, as an investor and neighbor in Colombia, I am hopeful Colombia will consider marriage equality honestly – based on facts, not myths and harmful stereotypes – and justly, in fairness and open-mindedness, and approve marriage for same-sex couples.

But if it doesn’t, we have human rights courts for a reason.

    Table: Where same-sex couples can marry (and population):

United States:
Connecticut​ 3.6
Iowa ​3.0
Maine ​ 1.3
Maryland ​ 5.8
Massachusetts 6.5
New York ​ 19.4
Vermont 0​.6
Washington ​6.7
District of Columbia 0​.6

World:
Argentina​ 40.1
Belgium​ 11.1​
Canada​ 35.0​
Denmark​ 5.6​
Iceland​ 0.3​
Netherlands​ 16.8​
Norway​ 5.1​
Portugal​ 10.6​
South Africa​ 51.8​
Spain​ 46.8​
Sweden​ 9.6​
Brazil​ 193.9​*
Bahia​ 14.0​
São Paolo​ 11.3​
Alagoas​ 3.1
D.F. ​ 2.6​
Piauí​ 3.1​
Mexico​ 112.3*
D.F.​ 8.9​
Quintana Roo​ 1.4​
​Oaxaca​ 3.9​
New Zealand (4.4)
Uruguay 3.3

In 2013, the parliaments of France (66 million) and England (63 million) strongly approved marriage equality legislation and it will be law there in the next few months.
What will Colombia (47 million, 5% of the Americas) do?

Of the approximately 950 million residents of the Americas (from North Pole to South),

Those who live where same-sex couples can marry = 331.9 million / 950 million = 35%.
Those who live where same-sex couples’ marriages from other places are legally enforced = 269.0 million / 950 million = 28%.

So in total 65% of the Americas lives where marriage equality is accepted.

5 Comments leave one →
  1. April 18, 2013 10:56 am

    Thank you for your article. Perhaps you can answer a
    general question(s) I have. If the Constitutional Court already
    ruled in favor of LGBT Unions, they why is there even a vote
    happening? Is Colombia’s Constitutional Court similar to the US
    Supreme Court? Why isn’t the ruling of the Constitutional Court
    final? Thank you!

  2. April 18, 2013 4:55 pm

    Great Article, as usual. But I am confused by something. My
    partner and I have entered into a Union Libre / Civil Union in
    Colombia in front of a Notary. From my understanding this provides
    us the same rights and responsibilities as married or non-married
    heterosexual cuples, excpet for the abilitiy to adopt. Am I
    mistaken?

    • April 19, 2013 7:47 pm

      As my post states at the beginning, the Senate is debating this bill because in 201, the Constitutional Court found that families headed by same-sex couples have an unconstitutional deficit of legal status protection compared to heterosexual couples’ families, and offered the Congress until June 20, 2013 to legislate the elimination of the deficit of family protection.

      This is just about the same as what happened in Massachusetts. The state’s highest court ordered the legislature to offer equal protection to same-sex couples, the legislature met the deadline with a “civil unions” bill, and the court promptly rejected it as “separate but equal.”

    • April 19, 2013 7:52 pm

      My answer was posted to the wrong comment. Union Libre is most definitely not he same as married couples. It is the same as heterosexual couples who only want Union Libre. But that does not have important rights of civil status and parenting.

      What’s more, excluding of same-sex couples from the ability to marry the person they choose makes us second-class citizens. It perpetuates harmful stereotypes about LGBTI people that foster social exclusion, discrimination in all walks of life, and of course hate crimes.

  3. May 9, 2013 11:55 am

    Thanks!

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