The Vicissitudes of Same-Sex Marriage in Colombia

On April 6th, 2016 the Colombian Constitutional Court ruled, once more, in favor of equal rights and full citizenship for LGBTI Colombians. In a 6-3 vote, the Court’s majority opposed a justice’s opinion that denies the right of same-sex couples to civil marriage. A new ruling from the High Court is expected in the coming weeks declaring the refusal from judges and notary for same-sex couples to access civil marriage to be discriminatory.

It has been a bumpy road, with several bills failing in Congress, but this decision finally rewards the many years of local activism and confirms the central role that the Constitutional Court has played in advancing the rights of minorities in Colombia.

In 2011 the Court ruled that same-sex couples are “family” and ordered the Congress to regulate same-sex marriage by June 2013. The Congress failed to do it, so, in the lack of regulation, the Court authorized judges and notary publics to execute the contract.

However, in the last two years, while some judges and notary publics have celebrated around 40 civil marriages, many others have resisted their duty or have done it poorly issuing discriminatory contracts that are not in accordance with the full protections for the family that the Constitution guarantees since 2011.

One of the main obstacles for the implementation of LGBTI rights in the country, as Colombia Diversa and other groups have denounced, is the persecution that the Attorney General embarked on against public functionaries, LGBTI jurisprudence and policies, civil society groups, same-sex couples and supporters. For an account of the Attorney General Office’s actions against LGBTI human rights in Colombia see: "Procurador persiguió sistemáticamente a parejas del mismo sexo durante el 2013"

It is possible to say that Colombia had the constitutional potential for same-sex marriage since June 2013, however, the obstacles that couples faced to get married and enjoy the  full status that comes with it led four couples to present their cases before the Court for review.  The Court agreed to rule again and we witnessed yesterday the most solid and final step towards same-sex marriage in Colombia.  For an overview of the cases that led to the decision see: Infographic about the four cases.

This new ruling will protect once and for all LGBTI families with identical rights and duties as heterosexual families. In November 2015, the Court declared it unconstitutional to reject an adoption claim based on the sexual orientation of the petitioner. This week  the Court was coherent with this ruling by confirming that the sexual orientation of a person cannot be a source of discrimination in accessing marriage.  This is a great victory.

As German Rincón Perfetti, a well-known activist and lawyer for one couple states,

“The real winner in this decision is democracy, because democracy is not about the power of the majority but about recognition and validation for all, including all minorities.”

By the same token, Macarena Sáez, director of the Human Rights Center at the Washington College of Law at American University, lawyer for Karen Atala at the IACHR in Atala Riffo and daughters vs. Chile and a participant in the same-sex marriage hearings at the Constitutional Court in Bogota in July 30 2015, says,

“ Although we have to wait for the final decision containing the Court’s opinions, this is an historic moment worth of celebration. This is a not only a victory for the direct beneficiaries of the decision. Today, Colombia is a better place for all of us and a model for the region.”

OutRight Action International congratulates the LGBTI activists and couples who advanced their cases to make a difference for all of us. In particular, we warmly celebrate this victory with our long time colleagues and friends at Colombia Diversa, winner of the 2010 Felipa de Souza Award, and with Germán Rincón Perfetti for their leadership and resilience in this and other human rights struggles.