Honorable Justice Hernán Salgado Pesantes
Ecuadorian Constitutional Court
Quito – Ecuador
José Miguel Vivanco, on behalf of Human Rights Watch, located at 350 Fifth Avenue, 34th floor, New York, United States, presents this amicus brief to the Honorable Constitutional Court of Ecuador in the case 0011-18-CN concerning same-sex marriage. For that purpose, we respectfully state:
- Purpose and Summary of this Submission
Human Rights Watch respectfully requests that the Ecuadorian Constitutional Court accept this submission for its consideration of the international legal arguments regarding same-sex marriage.
The issue presented before the court is whether Ecuadorian courts should allow same-sex couples to marry, in accordance with the Interamerican Court of Human Rights’ Advisory Opinion 24 which called on states to take measures to allow same-sex couples to marry. This brief is structured as follows: Section II of this brief provides background on Human Rights Watch and our interest in the case. Section III provides an overview of international human rights standards regarding same-sex marriage, including on the right to marry and form a family, the right to privacy, and the rights to non-discrimination and equality before the law. It also summarizes the legal value of these standards under international and Ecuadorian law. Section IV suggests that the Ecuadorian court should protect the rights of same-sex couples, as opposed to leaving the decision to recognize same-sex marriage in hands of the legislature.
- Background on Human Rights Watch and Our Interest in the Case
Human Rights Watch is a nongovernmental organization that has been dedicated to protecting human rights since 1978 (www.hrw.org). It is independent and non-partisan. It accepts no money, either directly or indirectly, from any government. It is headquartered in New York and has offices in several other cities on different continents. Human Rights Watch enjoys consultative status with the Organization of American States, the United Nations Economic and Social Council, and the Council of Europe, and maintains a working relationship with the Organization of African Unity.
Human Rights Watch regularly monitors the human rights situation in Ecuador, and has repeatedly exposed and expressed concern regarding violations of fundamental rights recognized in international treaties ratified by Ecuador.
As part of its mandate, Human Rights Watch uses judicial and quasi-judicial tools of domestic and international law to contribute to protecting and promoting human rights. That commitment has motivated this specific Human Rights Watch petition.
- Applicable law
i. Preliminary Considerations
The Constitution of Ecuador states that international human rights treaties ratified by Ecuador are directly applicable by courts and government authorities, and that treaties that provide greater protections must be given precedence over Ecuadorian laws and the Constitution itself.
As explained in more detail below, the rights to marry, to form a family, to privacy, and to equality and non-discrimination, are codified in human rights treaties ratified by Ecuador. These include the American Convention on Human Rights (ACHR), and the International Covenant on Civil and Political Rights (ICCPR).
Decisions by bodies charged with interpreting these human rights treaties provide authoritative guidance on the extent of the rights they enshrine. Furthermore, the Inter-American Court of Human Rights, the court charged with interpreting the ACHR, has repeatedly held that party states have a duty to take its case-law into consideration when interpreting their legal obligations under the ACHR. In particular, the Court has held that:
“[T]e Judiciary must exercise a sort of “conventionality control” between the domestic legal provisions which are applied to specific cases and the American Convention on Human Rights. To perform this task, the Judiciary has to take into account not only the treaty, but also the interpretation thereof made by the Inter-American Court, which is the ultimate interpreter of the American Convention.”
- The Fundamental Rights to Marry and to Form a Family
The rights to marry and to form a family are fundamental rights recognized in art. 23 of the International Covenant on Civil and Political Rights and art. 17 of the American Convention on Human Rights.
International law does not limit the recognition of such rights to heterosexual couples. Furthermore, various international human rights bodies, such as the UN Human Rights Committee, the UN Committee on the Rights of the Child, and the CEDAW Committee have rejected the idea that a “family,” as understood under international human rights law, must conform to any single model.
Moreover, the Inter-American Court of Human Rights and the European Court of Human Rights (ECHR) have specifically stated that same-sex couples have the right to form a family. In Advisory Opinion 24, the Court held that:
“None of the provisions cited contain a limited definition of what should be understood as a “family.” On this issue, the Court has stated that the American Convention does not include a specific narrow definition of family and that the convention does not protect a particular model of family.”
- The Right to Privacy
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. The Inter-American Court of Human Rights has also repeatedly held that these rights, taken together, require States to adopt positive measures to protect families. 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.”
iv. The Rights to Non-discrimination and Equality Before the Law
International human rights law provides a clear elaboration definition of discrimination. According to the UN Human Rights Committee, discrimination is:
“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.”
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. For example, the Inter-American Court 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.”
Various human rights bodies and courts, including the Inter-American Court, the UN Committee on Economic, Social, and Cultural Rights, and the UN Human Rights Committee, have stated that discrimination based on sexual orientation is prohibited by international human rights treaties.
According to authoritative interpretations by human rights bodies, the State must provide particularly convincing arguments to discriminate against LGBT people. Both the Inter-American Commission of Human Rights and the Inter-American Court have held that any distinctions based on sexual orientation must be closely scrutinized to ensure that they are not discriminatory. In the “Atala Riffo” case, the Court 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.” 
The Commission 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.”
“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.”
In its Advisory Opinion 24, the Inter-American Court concluded that legislation that allows heterosexual couples to marry while denying that right to same-sex couples would not surpass this test. The Court noted that there was “no objective that would be admissible under the Convention and could be used to argue that such distinction can be considered necessary or proportionate.”
The Court also noted that:
“Creating a legal figure that produces the same effects and allows for the same rights than to of marriage but has another name lacks any sense other than that of using a name for same-sex couples that, if not stigmatizing, it at least shows that they are not valued as much as heterosexual couples. Therefore, there would be a marriage for those considered, according to the heteronormative stereotype, to be ‘normal’ and another legal figure with identical effects but a different name for those considered to be ‘abnormal,’ according to that stereotype. Based on that, for this court, it would not be admissible to have two types of legal figures to consolidate heterosexual and homosexual couples, since that would be a distinction based on sexual orientation, which would be discriminatory and, therefore, inconsistent with the American Convention.”
- The Role of Courts in Protecting the Rights of LGBT People
It is the Courts’ role to intervene to ensure that fundamental rights are upheld, and not overridden or trampled on by laws or other acts of government. For instance, in “Atala Riffo v. Chile”, the Inter-American Court 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.”
“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.”
This is consistent with what other domestic courts—including in Argentina, South Africa, and the United States—have held in similar situations.  For example, the Supreme Court of the United States 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.”
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.”
For the abovementioned reasons, we ask this Honorable Court to:
- Accept Human Rights Watch as a Friend of the Court in this case, and
- Uphold the right of same-sex couples’ to marry, in light of the international standards outline in this brief.
José Miguel Vivanco
Human Rights Watch
 Inter-American Court, Advisory Opinion 24, November 24, 2017, Inter-Am Ct.H.R., Series A. No. 24, para. 228.
 Ecuadorian Constitution, arts. 11(3), 417, 424 párr. 2, and 426.
 American Convention on Human Rights (“Pact of San José, Costa Rica”), adopted November 22, 1969, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123, entered into force July 18, 1978, ratified by Ecuador on December 27, 1977, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992), arts. 1(1), 11, 17, 24; International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A(XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1996), 999 U.N.T.T.S. 302, ratified by Ecuador on March 6, 1969 entered into force March 23, 1976, arts. 1(1), 17, 23, 26.
 Inter-American Court, Almonacid Arellano case, Judgement of September 26, 2006, Inter-Am Ct.H.R., Series C. No. 154, para. 124.
 American Convention on Human Rights, art. 17; International Covenant on Civil and Political Rights (ICCPR), art. 23.
 CEDAW Committee, General Recommendation No. 21 (13th session, 1994), para. 13; UN Committee on the Rights of the Child, Report on the Fifth Session, January 1994, CDC/C/24, Annex V, p. 63; UN Committee on the Rights of the Child, General Comment 7: Implementing child rights in early childhood, September 2006, para. 15; UN Human Rights Committee, General Comment 19, HRI/GEN/1/Rev.2, p. 29.
 European Court of Human Rights, Schalk and Kopf v. Austria, 24 June 2010, para. 94; Inter-American Court, Atala Riffo and Daughters, February 24, 2012, Inter-Am Ct.H.R., Series C. No. 329, paras. 145, 177.
 Advisory Opinion 24/2017, para. 174 (translation by Human Rights Watch). See also, Inter-American Court, Atala Riffo and Daughters Case, para. 145.
 Inter-American Court, Atala Riffo, para. 169. See also Artavia Murillo Case, Judgment of November 28, 2012, Inter-Am Ct.H.R., Series C. No. 310, para. 145.
 Inter-American Court, Chitay Nech Case, Judgment of May 25, 2010, Inter-Am Ct.H.R., Series C. No. 212, para. 158.
 Inter-American Court, Atala Riffo and Daughters Case, para. 169.
 European Court of Human Rights, “Oliari and others v. Italy”, July 21, 2015, Applications nos. 18766/11 and 36030/11, 185.
 UN Human Rights Committee, General Comment No. 18, Non-discrimination, November 10, 1989, CCPR/C/37, para. 6; UN Committee on Economic, Social and Cultural Rights, General Comment 20: Non-discrimination in economic, social and cultural rights, July 2, 2009, para. 7.
 UN Human Rights Committee, General Comment No. 18, Non-discrimination, November 10, 1989, CCPR/C/37, para. 6.
 Inter-American Court, Atala Riffo and Daughters Case, para. 82. See also Inter-American Court, Duque case, Judgment of February 26, 2016, Inter-Am Ct.H.R., Series C. No. 310, para. 106.
 Inter-American Court, Atala Riffo and Daughters Case, para. 91; UN Committee on Economic, Social and Cultural Rights, General Comment 20: Non-discrimination in economic, social and cultural rights, July 2, 2009, para. 32 UN Human Rights Committee, Toonen v. Australia, Communication No. 488/1992, CCPR/C/50/D/488/1992, April 4, 1992, para. 8.7; X v. Colombia, Communication No. 1361/2005, CCPR/C/89/D/1361/2005, May 14, 2007, para. 7.2. See also European Court of Human Rights, Salgueiro Da Silva Mouta v. Portugal, December 21, 1999, para. 28.
 Inter-American Commission on Human Rights, Homero Flor Freire v. Ecuador, November 4, 2013, Report No. 81/13, paras. 99, 100; IACHR, Angel Alberto Duque v. Colombia, April 2, 2014, Report 5/14, para. 63; Inter-American Court, Atala Riffo and Daughters Case, para. 124.
 Inter-American Court, Atala Riffo and Daughters Case, para. 124.
 Inter-American Commission on Human Rights, Homero Flor Freire v. Ecuador, November 4, 2013, Report No. 81/13, paras. 99, 100. See also Inter-American Commission on Human Rights, Angel Alberto Duque v. Colombia, April 2, 2014, Report 5/14, para. 63.
 Inter-American Commission on Human Rights, Homero Flor Freire v. Ecuador, November 4, 2013, Report No. 81/13, para 100.
 Inter-American Court, Advisory Opinion 24, para. 223 (translation by Human Rights Watch).
 Inter-American Court, Advisory Opinion 24, para. 224 (translation by Human Rights Watch).
 Inter-American Court, Atala Riffo and Daughters Case, para. 281.
 Inter-American Court, Atala Riffo and Daughters Case, para. 284.
 Constitutional Court of South Africa, Case CCT 60/40, December 1, 2005.
 Supreme Court of the United States, Obergerfell v. Hodges, 576 U.S. (2015), p. 24.
 Federal Court of Administrative and Tax Affairs No. 15 of Buenos Aires, June 26, 2009.