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A Step Backward for Same-Sex Couples in Chile

Published in: El Mercurio
People take part in the annual Pride parade in support of the LGBT community, in Santiago, Chile, on June 22, 2019. © REUTERS/Rodrigo Garrido

Over three years ago, the Chilean government sent a bill to Congress to uphold same-sex marriage. The bill has not moved forward. Instead, Chile has been taking steps backward.

Take the June decision by the Constitutional Court, denying a request by a lesbian couple who were married in Spain and have a child, to have their marriage recognized in Chile. The court, in a 5-4 ruling, used language denigrating the rights of lesbian, gay, bisexual, and transgender (LGBT) people. The ruling reinforces the need for Congress to pass a bill establishing equal marriage rights for same-sex couples.

Justice Cristián Letelier Aguilar’s majority decision—which four other justices largely concurred with—argued that Chilean law, in its denial of marriage rights to LGBT people, does not discriminate because “a homosexual person can contract marriage in Chile if they do it with a person of the opposite sex.” The Justice seems to believe that gays and lesbians only deserve equal treatment if they stop being who they are.

Justice Letelier Aguilar also compared same-sex marriage with what he called “sui generis marriages,” including those involving “marriage of children in African countries.” His offensive analogy ignores that, unlike adult marriages, child marriages across the world are devoid of consent and violate basic human rights.

Similarly, Justice Miguel Ángel Fernández González suggested in his concurring opinion that allowing same-sex couples to marry would entail the “destruction” of marriage. The justice should be reminded that marriage has changed in fundamental ways over the years, including to uphold equal rights of women and men. These changes have strengthened, not weakened, the institution of marriage.

The June decision also ran counter to recent gains toward the recognition of LGBT rights in the region. In Chile, the National Congress passed a civil union law in 2015 which grants same-sex couples some of the rights of marriage. Countries including Colombia, Ecuador, and Costa Rica have recognized same-sex marriage in recent years. They joined Argentina, Brazil, Uruguay, and some Mexican states, which recognized same-sex marriage earlier in the decade.

These advances have built on a growing number of international decisions upholding the rights of LGBT people. In 2012, the Inter-American Court of Human Rights found Chile to have discriminated against a lesbian woman and violated other rights when it denied her custody of her children. The court paved the way for later progress by establishing that regional human rights standards do not favor any specific model of the family.

In 2017, the same court issued a landmark advisory opinion holding that discriminatory access to marriage, with all the rights and benefits that derive from it, was inconsistent with states’ obligations under the American Convention on Human Rights. While the ruling itself is not binding on Chile, it provides an authoritative interpretation of the American Convention on Human Rights, to which Chile is a party.

Yet the Constitutional Court in large part ignored—or distorted—such rulings. Tellingly, Justice Letelier Aguilar’s majority decision does not even mention case law from the Inter-American Court of Human Rights. Two other judges in the majority—Iván Aróstica Maldonado and José Ignacio Vásquez Márquez—distorted the Inter-American Court’s opinion to suggest that the Court did not affirm that states must provide the same protections and legal framework to same-sex couples as to different-sex couples. 

Instead of relying on case law from human rights courts, Justice Letelier Aguilar’s majority decision examined two decisions from high courts in France and Italy. Meanwhile, he ignored the growing body of case law that upholds same-sex couples’ right to marry, including from the US Supreme Court. As that Court noted in 2015, denying same-sex couples access to the institution of marriage “teach[es] that gays and lesbians are unequal” and “demeans” them by “lock[ing] them out of a central institution of the Nation's society.” Likewise, Justice Letelier Aguilar could have examined decisions by high courts in several countries that have recognized same-sex marriages contracted abroad.

Fortunately, the Chilean Congress can undo this harmful ruling and uphold the country’s human rights obligations toward same-sex couples. Lawmakers should take decisive action to recognize same-sex marriage.

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