Testimony before the Colombian Constitutional Court on same-sex marriage

The purpose of this testimony is to share with this Honorable Court a review of international human rights standards that we believe the Court should take into consideration when ruling on same-sex marriage in Colombia.

I will first argue that the rights to marry and to form a family are fundamental human rights that are not limited to heterosexual couples. (Point A)

Second, I’ll argue that the right to form a family is closely linked to the right to privacy, which requires States to take positive actions to protect same-sex couples, including legal recognition. (Point B)

Third, I’ll argue that this Honorable Court should apply a strict test when analyzing whether norms regarding Colombian same-sex couples who wish to marry undermine the principle of non-discrimination. (Point C)

On the basis of the rights to privacy and non-discrimination, Human Rights Watch considers it fitting that this Court extends the right to marry to same-sex couples. As local groups have illustrated, despite limited legal recognitions, same-sex couples in Colombia do not enjoy the same benefits that heterosexual couples do.

Finally, I will conclude that given the inaction of the Colombian Congress, this Court should act to extend the right to marry to same-sex couples. (Point D)

A. The right to marry and to form a family are fundamental rights that States should protect

1. These rights are fundamental rights recognized in art. 23 of the International Covenant on Civil and Political Rights[1] and art. 17 of the American Convention on Human Rights.[2]

2. International law does not limit the recognition of such rights to heterosexual couples:

a. There is no definition of marriage being between a man and a woman in international instruments.

b. Various international human rights bodies, such as the UN Human Rights Committee,[3] the UN Committee on the Rights of the Child,[4] and the CEDAW Committee[5] have rejected any single model of family.

c. Moreover, the Inter American Court of Human Rights (IACtHR)[6] and the European Court of Human Rights (ECHR)[7] have specifically stated that same-sex couples have the right to form a family. In “Atala Riffo v. Chile”, the IACtHR held that:

“In the instant case, this Court finds that the language used by the Supreme Court of Chile regarding the girls’ alleged need to grow up in a ‘normally structured family that is appreciated within its social environment,” and not in an “exceptional family,’ reflects a limited, stereotyped perception of the concept of family, which has no basis in the Convention, since there is no specific model of family (the ‘traditional family’).”

B. The rights to marry and to form a family are closely linked to the right to privacy, which requires States to adopt positive measures to protect same sex-couples, including their legal recognition

1. The IACtHR has determined that the right to form a family is closely linked to the right to privacy.[8]

2. The IACtHR has also repeatedly held that these rights, taken together, require States to adopt positive measures to protect families.[9] For instance, in “Atala Riffo v. Chile” the Court held that:

“…the Court reiterates that Article 11(2) of the American Convention is closely linked to the right to protection of the family and to live in a family, recognized in Article 17 of the Convention, which requires the State not only to provide and directly implement measures of protection for children, but also to favor, in the broadest possible terms, the development and strength of the family unit.”[10]

3. The ECHR has very recently noted in “Oliari and Others v. Italy” that the right to privacy require States to provide a “specific legal framework providing for the recognition and protection of their same-sex unions.” While the Colombian Constitutional Court’s 2011 decision, which calls on Congress to create a legal framework to protect same-sex couples, is consistent with the European Court’s decision, the Colombian Congress’s failure to legislate on this matter creates a situation of uncertainty that undermines same-sex couples’ rights. In this sense, the ECHR held in “Oliari” that:

“In the Court’s view, the necessity to refer repeatedly to the domestic courts to call for equal treatment in respect of each one of the plurality of aspects which concern the rights and duties between a couple, especially in an overburdened justice system such as the one in Italy, already amounts to a not-insignificant hindrance to the applicants’ efforts to obtain respect for their private and family life. This is further aggravated by a state of uncertainty…

(…) this repetitive failure of legislators to take account of Constitutional Court pronouncements or the recommendations therein relating to consistency with the Constitution over a significant period of time, potentially undermines the responsibilities of the judiciary and in the present case left the concerned individuals in a situation of legal uncertainty which has to be taken into account.”[11]

C. Limiting marriage to heterosexual couples violates the rights to non-discrimination and equality before the law

1. International law provides a broad definition of discrimination.[12] According to the UN Human Rights Committee, discrimination is defined as:

“any distinction, exclusion, restriction, or preference based on certain motives, such as race, color, gender, language, religion, a political or any other opinion, the national or social origin, property, birth or any other social condition, that seeks to annul or diminish the acknowledgment, enjoyment, or exercise, in conditions of equality, of the human rights and fundamental freedoms to which every person is entitled.”[13]

2. Even if this Court determines that same-sex couples do not have a fundamental right to marry, denying them the possibility to marry, which exists for heterosexual couples, violates the right to equal protection of the law. According to local groups, despite the limited legal recognitions granted to same-sex couples through civil unions, they do not enjoy the same rights as heterosexual couples in Colombia. The IACtHR held in “Atala Riffo v. Chile” that:

“Article 24 of the American Convention prohibits discrimination, by law or de facto, not only with regard to the rights enshrined in said treaty, but also in regard to all laws approved by the State and their application. In other words, if a State discriminates in the respect for or guarantee of a right contained in the Convention, it will be failing to comply with its obligation under in Article 1(1) and the substantive right in question. If, on the contrary, the discrimination refers to unequal protection by domestic laws, the fact must be analyzed in light of Article 24 of the American Convention.”[14]

3. Various human rights bodies and courts, including the IACtHR,[15] the UN Committee on ECSR,[16] the UN Human Rights Committee,[17] and the ECHR[18] have agreed that discrimination based on sexual orientation is prohibited by international human rights treaties. 

4. According to authoritative interpretations by human rights bodies, the State must provide particularly convincing arguments to discriminate against LGBT people.

a. Both the Inter-American Commission of Human Rights (IACHR)[19] and the IACtHR[20] have held that discrimination against LGBT people must surpass a severe test in order to be legal. In the “Atala Riffo” case, the IACtHR held that:

“As regards the prohibition of discrimination based on sexual orientation, any restriction of a right would need to be based on rigorous and weighty reasons. Furthermore, the burden of proof is inverted, which means that it is up to the authority to prove that its decision does not have a discriminatory purpose or effect.” [21]

The IACHR has also noted that:

“[T]he IACHR already established that sexual orientation is a suspect category of discrimination under the criteria of non-discrimination contained in Article 1(1) of the American Convention and as such any distinction based on it should be examined with strict scrutiny.”[22]

And therefore:

“It is not enough for the measure to be suitable or for there to be a logical relationship of causality between it and the objective pursued, but rather it should be strictly necessary to achieve that aim, in that there is no other less harmful alternative. Finally, to meet the requirement of proportionality one must argue the existence of an adequate balance of interests in terms of the degree of sacrifice and the degree of benefit.”[23]

b. Similarly, the ECHR has repeatedly held that differences based on sexual orientation require particularly serious reasons by way of justification since they affect an intimate aspect of an individual’s private life.[24] For instance, in “Smith and Grady v. United Kingdom,” the ECHR held that:

“It is common ground that the sole reason for the investigations conducted and for the applicants’ discharge was their sexual orientation. Concerning as it did a most intimate aspect of an individual’s private life, particularly serious reasons by way of justification were required.”[25]

D. Same-sex people’s rights should be upheld by this Court since it is the Court’s role to intervene when the rights of minorities are at stake and they are not protected by the majority

1. This is the role of courts under international law. For instance, in “Atala Riffo v. Chile”, the IACtHR held that:

“(…) [W]hen a State is Party to an international agreement such as the American Convention, all its organs, including its judges and all other entities linked to the administration of justice, are also subject to it. This obliges them to remain vigilant and to ensure that the effects of the Convention’s provisions are not impaired by the application of other laws contrary to its purpose and aim.”[26]

(…)

“In conclusion, based on the treaty control mechanism, legal and administrative interpretations and proper judicial guarantees should be applied in accordance with the principles established in the jurisprudence of this Court in the present case 293. This is of particular importance in relation to sexual orientation as one of the prohibited categories of discrimination pursuant to Article 1(1) of the American Convention.”[27]

2. This is consistent with what other domestic courts—including in Argentina, South Africa,[28] and the United States—have held in similar situations. For example, the Supreme Court of the United States recently held that:

“Of course, the Constitution contemplates that democ­racy is the appropriate process for change, so long as that process does not abridge fundamental rights… Indeed, it is most often through democracy that liberty is preserved and protected in our lives. But as Schuette also said, ‘[t]he freedom secured by the Constitution consists, in one of its essential dimensions, of the right of the individual not to be injured by the unlawful exercise of governmental power.’ … Thus, when the rights of persons are violated, ‘the Constitution requires redress by the courts,’ notwithstanding the more general value of democratic decision making (…)

The dynamic of our constitutional system is that indi­viduals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to in­jured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act.”[29]

Similarly, an Argentine court held in a decision about marriage for same-sex couples that:

 “An interpretation that prevented courts from addressing decisions by the Congress would, on the hand, annul the dialogue of powers that the Constitution supports… and could, on the other hand, leave those belonging to minorities unprotected as they would be subject to the decision of circumstantial majorities.”[30]

To conclude, I would like to reiterate that in light of the international standards described, it would be appropriate for the Colombian Constitutional Court to uphold same-sex couples’ right to marry, given that: (1) the Colombian Congress has failed to act in this regard, and (2) the current protections afforded to same-sex couples under civil unions are not the same as those afforded heterosexual, married couples.