Argentine Same-Sex Marriage Debate Returns

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In 2002, Argentina was at the forefront of the Lesbian, Gay, Bisexual, and Transgender (LGBT) rights debate when it became the first country in the region to allow same-sex civil unions. After this landmark decision, other countries such as Mexico, Ecuador, Uruguay, and even Spain followed suit. On November 13th, 2009, Judge Gabriela Seijas once again put Buenos Aires ahead of its neighbors by ruling that the Argentine government must recognize the marriage of José María Di Bello and Alex Freyre, a same-sex couple. This decision makes Argentina the first Latin American country to attempt to institutionalize same-sex marriage. Despite the temporary block of Di Bello and Freyre’s wedding, ordered by a national judge on December 1st, Argentines will soon be engaged in a battle over the deadlocked debate when the country’s Congress and Supreme Court take up the issue in the coming months. With regard to the rest of the region, the pending question is whether or not other countries will once again follow in Argentina’s footsteps regarding the legalization of same-sex marriage.

As leftist governments continue to be elected throughout the region, the LGBT movement is approaching a crossroad: will these governments honor their stated values of equality and protect the gay community? Or, will a deeply-rooted, conservative Catholicism continue to prevent equal status for all members of society? As these progressive governments consolidate their bases on the basis of promises to the poor and disenfranchised, they must extend some of the same promises to the LGBT community. On this issue Argentina is unique in its regional context because it has now twice been the first to initiate the granting of equal status for its LGBT citizens. So far, several Latin American governments, like Argentina, are also moving to fulfill some of their promises and apposite principles by extending some rights through the institutionalization of same-sex civil unions, much to the chagrin of conservatives, religious leaders and others. In the meantime, the Argentine LGBT community will continue to commemorate the country’s willingness to be the first to tackle this contentious issue.

LGBT-Friendly Argentina

As institutions in other Latin American countries begin to defend gay rights, Argentina remains ahead of its neighbors. Although Buenos Aires’ progressive streak is not representative of the whole country, other cities and provinces have followed its lead. After the 2002 decision authorizing same-sex civil unions, the cities of Villa Carlos Paz, Rio Cuarto, and the Province of Río Negro implemented similar measures. These civil unions provide Argentine same-sex couples with health and other insurance benefits, as well as hospital visitation rights that always have been granted to heterosexual couples. However, like the corresponding laws found in Mexico City, Argentine civil unions exclude other rights such as adoption. For instance, both partners in a same-sex relationship cannot be legally recognized as parents to their children. In the eyes of the law only one parent is recognized while the other possesses no legal rights or formal relationship to the child. Similarly, Argentine civil union laws are devoid of adequate inheritance rights, as homosexual couples do not automatically inherit from each other.

Judge Seijas ruled in favor of José María Di Bello and Alex Freyre primarily because of the legal limitations of civil unions. After their attempt to file for a marriage license was denied they took their case to the courts. Judge Seijas ordered their marriage be legally recognized by the Buenos Aires registry because, according to her, “The city code [prevents people from] enjoying the rights that couples who enter into matrimony are entitled to.” Her reasoning stems from the fact that civil unions in Argentina, while a step towards full equality, still do not bestow the same rights of heterosexual marriage to homosexual couples, effectively judging them to be of an inferior quality and thus creating a system of unequal relationships. Under her ruling, José María Di Bello and Alex Freyre would be able to enjoy benefits that were previously withheld from them, including “inheritances, pensions and the ability to make decisions for the other person when he or she is incapacitated.” This development has given hope to many other same-sex couples that are seeking legal recourse for the recognition of their full marriage rights. Still, because of the bold nature of the ruling, many in the country are wondering whether the decision will now be overturned by the Supreme Court, or if the Argentine Congress will finally revisit the gay marriage debate and officially grant equal rights to all Argentine citizens.

To the momentary relief of José María Di Bello and Alex Freyre, as well as the rest of the Argentine LGBT community, the city of Buenos Aires has chosen not to challenge Seijas’ decision. The city’s mayor, Mauricio Macri, publicly stated that Argentines must come to terms with the ruling, because “we have to live together and accept reality…The world is headed in that direction.” Whether Mayor Macri’s statement is a reflection of the narrow scope of the ruling – only pertaining to José María Di Bello and Alex Freyre – or whether it is a nod to other gay couples, suggesting they pursue a similar path, it is unanimously believed that his opinion inevitably will create more than a little pressure on the Argentine Congress to end its deadlock on two same-sex marriage bills currently stuck in the committee phase.

The first bill, according to Jurist Legal News and Research, proposes changing the definition of marriage and “seeks to establish that all references to the institution of marriage in the Civil Code refer equally to homosexual and heterosexual marriages.” The second bill deals more directly with rights of homosexual couples and “seeks to define marriage as a union between couples of the opposite sex or the same sex, and additionally stipulates that all married couples without exception should be afforded the right to adopt [and other rights].” Both Vilma Ibarra, the main sponsor of both bills, and Maria Rachid, President of the Argentine LGBT Federation, believe the twenty co-signers on each bill will constitute enough votes to bring the bills out of committee and onto the lower house floor for debate. Given the space for progress that Judge Siejas’ ruling has opened, many believe the Argentine Congress will see fit to renew the debate, a speculation that already has rallied both supporters and opponents for battle.

Despite the great progress that recently has been achieved by the LGBT community in Argentina, massive hurdles remain. Of these obstacles, none is more prevalent than the power of the Catholic Church. In a country where approximately 90% of the population is Roman Catholic, Church opinion is considered to be quite telling, if not final. For instance, up until 1994, Argentine presidents were required to be married and to be members of the Catholic Church. Given its influential position and inherent resistance to same-sex marriage, the Catholic Church has all but crowned itself leader of the opposition. Curiously, many Catholic leaders have remained rather supportive of same-sex couples seeking civil unions and the extension of some rights. However, when the conversation turns to same-sex marriage and the full rights of equality it brings, these same leaders drastically change their tone, becoming austere and discriminatory; a prime example being Archbishop Jorge Bergoglio who said that gay marriage “is a serious detachment from the laws that govern us.”

After Judge Seijas issued her opinion, religious leaders were among the first to comment. Priests and bishops around the country described the ruling as a “threat to the natural order of life,” and “a destruction of the family as an institution,” as well as “the promotion of perversions.” Despite their fierce rhetoric, it remains an open-ended question whether the Church and other religious groups have enough muscle to undue Judge Seijas’s ruling and simultaneously dissuade the Argentine Congress from passing the two bills. LGBT leaders, such as Maria Rachid, already are preemptively attempting to undermine the Church’s influence in the debate. In an interview with Rachid, she argued that, “The opinion of religious leaders who dictate how other people should lead their lives should apply only to those who share their creed, and not to the rest of society.” While the battle of words has already begun, the real challege will commence once the bills reach the floor of the Argentine Congress where the opposition will either vote it down or add enough amendments to dilute the bill, which would make its effects largely negligible.

What About the Neighbors?

Argentina broke historical ground in 2002 by recognizing same-sex civil unions, and once again in 2009 by being the first Latin American country to attempt to recognize same-sex marriage. While the city was among the first in the Spanish-speaking world to do so on both counts, it surely will not be the last. Since 2002, other Ibero-American countries as well as selective urban centers have followed Buenos Aires’ example by extending legal rights to same-sex civil unions, and even in one instance, allowing marriage. In 2005, Spain became the first nation in the Spanish-speaking world to recognize same-sex marriage, well ahead of Argentina. After a lengthy domestic battle with conservatives and the Catholic Church, Prime Minister José Luis Rodríguez Zapatero fulfilled a campaign promise when on July 3rd, 2005, the Spanish Congress approved legislation that opened the institution of marriage to same-sex couples. The bill’s passage made Spain just the third country in the world to recognize the rights of married same-sex couples, after the Netherlands and Belgium, and ahead of Canada by seventeen days.

Around the same time, in Latin America, two more jurisdictions followed Argentina’s example as Uruguay and Mexico City legalized same-sex civil unions. Uruguay’s national congress, the Chamber of Deputies, passed a law allowing both same-sex and heterosexual couples to enter civil unions on November 29th, 2007. This legislation granted same-sex couples almost all of the same rights that heterosexual marriages enjoy in Uruguay, including inheritance, social security, and joint-ownership rights. These rights were further expanded in 2008, when the Chamber passed a law permitting same-sex couples to adopt children, making Uruguay the first country in Latin America to grant this right. Furthermore, for many in the LGBT community, there is much anticipation for the coming year in Uruguay. According to Senator Margarita Percovich, “[the] Frente Amplio party will implement in the coming period of government, a debate about the possibility of legalizing gay marriage.” If the current Uruguayan government manages to pass same-sex marriage legislation, it will become the first country in Latin America to do so, setting a previously unimaginable precedent, and possibly even outperforming Argentina. Even though Judge Seijas’ ruling sets an Argentine precedent, Uruguay seems to be the most viable prospect for national gay marriage legislation to be enacted because of its already extensive and progressive gay rights legal structure.

The year 2007 also saw the passage of civil union laws in Mexico City and Coahuila, Mexico. Unlike Uruguay, the Mexican civil union laws do not grant the same extensive benefits. Their provisions are rather limited and only recognize inheritance and the mutual provision of basic needs such as food. Nonetheless, the passage of same-sex civil union legislation is a big step for this deeply Catholic nation, and a further indication of the gay rights trend in the region. More encouraging news for the gay community came when in 2008, several other Mexican states, including Michoacán, Jalisco, Guerrero, and Puebla, started considering similar civil union laws. Furthermore, in April 2009, Mexico City began to do what had previously been unthinkable: publicly considering same-sex marriage legislation.

Colombia also joined the cause of LGBT rights last year when a ruling by its Constitutional Court enforced “de facto civil unions” for same-sex couples. Even though same-sex marriage is not allowed or recognized in the country, the Court ruling grants same-sex civil unions the same rights as heterosexual marriages. Like heterosexual married couples, Colombian same-sex couples have the rights of adoption, inheritance, health insurance coverage, and state benefits, among others, giving them some of the most extensive and progressive protections for same-sex unions in Latin America.

On par with Colombia is Ecuador’s own legal provision system. In 2008, the new Ecuadorian Constitution was passed, part of which covered the legal rights and entitlements of same-sex couples in civil unions. The LGBT community is constitutionally protected against “sexual orientation based discrimination,” making Ecuador one of the first countries in the world with such constitutional guarantees. The main difference between Ecuador and Colombia lies in adoption rights. While same-sex Colombian couples can jointly adopt children, those in Ecuador cannot.

As the subject of gay rights continues to gain traction in the national discourse of Latin American countries, it is more than likely that governments will be taking the progressive track on this issue. However, these winds of change have left some countries in the region like Paraguay, Bolivia, and Guyana virtually untouched, partly because of an inactive LGBT community and an overwhelming influence of the Church in the political sphere. Like in Spain, those who are willing to undertake this tremendous task must overcome the staunch opposition presented by the Catholic Church and its supporters.

The Deep Roots of Discrimination

Like Spain and the United States, Latin American countries possess deep historical religious roots and because of that, they constantly have had to struggle between their religious tradition and the human rights implications of denying same-sex marriage. If same-sex marriage is analyzed through the comprehensive lenses of economics, politics, society, and religion, it becomes evident that only religion provides a tangible excuse for the denial of marriage as a basic right to same-sex couples. For this reason, LGBT rights face vehement opposition in Latin America, as from a religious vantage point it provides a very subjective and narrow-minded justification for the unequal legal status of thousands of couples across the region. Therefore, it is up to Latin American political leaders and their constituencies to release the power grip of religion in the opening up of society.

It is far more profitable for governments, economically speaking, to legalize same-sex marriage than to maintain the status quo. According to Forbes Magazine, if same-sex couples were allowed to marry in the United States, the wedding industry would have an added US$10 billion dollars in revenue per year. Just a fraction of that figure could be a large boost to any Latin American country that is in dire need of enhanced revenue. The economic benefits of same-sex marriage extend even further, also affecting the tax revenue of governments. According to the Christian Science Monitor, “income taxes are generally higher for married couples than they are for single filers, because many married couples have two incomes, which drives them into a higher tax bracket,” providing Latin American governments with extra revenue that can increase the funding of social programs, enhancing the overall welfare of the nation. In addition, same-sex marriage can also potentially save government funds through reducing some public spending, as married couples have a greater safety net due to dual incomes. This allows Latin American governments to divert state benefits to those in more immediate need. Whether or not someone is for or against gay marriage, the economic incentives for its legalization are clear and overwhelming.

On the political front, the LGBT community has become an important force to be reckoned with in many countries, with a high degree of organizational capacity and mobility. This high level of mobilization makes the LGBT community a powerful ally and at times a fearsome enemy because of its ability to react and quickly mobilize in front of new developments and opportunities. Given the tight knit nature of the LGBT community, it has become a small voting bloc that candidates can tap into for support on an array of issues. While these characteristics exist to a lesser extent in countries like Ecuador and Colombia, in places like Buenos Aires, the LGBT community is well-known for its active involvement in politics.

From a human rights perspective, gay marriage is a moral imperative. Denying individuals the right to marry because of their sexual orientation is a violation of the basic tenants of equality and non-discrimination. All governments are charged with the obligation of providing equal protection for all of their citizens. By not ensuring full equality for the LGBT community, these governments would fail to uphold their designated mandates. Part of the insulting nature of withholding rights and benefits from the LGBT community stems from the fact that it is being done at times by the same leftist governments who promote themselves as emphasizing promises of equality and justice for all. By ignoring the LGBT community while dually enforcing laws that make them separate and unequal, these leftist governments are violating not only general principles of equality, but also the ideals that they uphold as their political credos. One specific example of this was the temporary overturn of Judge Seijas’ ruling on December 1st, the day that José María Di Bello and Alex Freyre were supposed to marry.

The December 1st Overturn

Despite the affirmative go ahead from Buenos Aires, national judge Marta Gómez Alsina blocked the wedding of Di Bello and Freyre until the Argentine Supreme Court has a chance to weigh in on the issue. On November 27th, a motion to annul Judge Seijas’ original ruling was brought by Francisco Roggero before Judge Alsina and was quickly granted. The result was once again the obstruction of the wedding by forbidding the Buenos Aires registry to grant the couple a marriage license. As part of her explanation, Judge Alsina stated on the Court’s website that the wedding should not take place until the Argentine Supreme Court had a chance to hear the case. Even though the Supreme Court announced it would hear a similar case only hours after Alsina’s ruling, the news still represented a blow to the LGBT community.

Judge Alsina’s decision has cast doubts over the viability of Judge Seijas’ ruling. As a result of the last minute news, plans for rallies and protests organized by the LGBT Argentine Federation were quickly organized in the hope of revealing the underlying mass public disapproval of the overturn. Many who are active in the gay community trust that the Supreme Court will take into account the recent surveys which, indicate that around 70% of the Argentine population believes in the legalization of same-sex marriage. In the end, people like Maria Rachid are confident that Argentina’s progressive streak will continue to push forward the advancement of gay rights.

One Small Step at a Time

Its advocates maintain that the humanitarian duty for legalization of same-sex marriage, as well as listing its many benefits, seem to be overcoming the deep-seated religious tradition against it in Latin America. While most of the region is certainly continuing the tradition of allowing the Church to dominate the political discourse, progress is slowly being made. The ever present arguments based on the supposed morality for shunning same-sex marriage, such as it “destroys the family,” and “goes against the natural order of things,” are finally beginning to give way to other public discourses such as equality, fairness, and inclusion. Even though this progress has been hampered by a momentary setback in Argentina, governments and their citizenry must not lose sight of their overarching accomplishments on this issue. They must realize that hurdles are inevitable in such a controversial fight, but that giving up is not an option. Argentines must continue this battle in the coming weeks as the Supreme Court will hand down the ultimate verdict, one way or another.

In a bold step, Argentina has chosen to become the standard bearer of gay rights in Latin America by being the first to challenge the status quo. Its slow and steady pace has put Argentina at the cusp of a social breakthrough currently unparalleled by its neighbors. Governments in Latin America like Colombia, Ecuador, and Uruguay, must continue the trend of following Argentina’s lead in furthering the LGBT cause, if for no other reason than the fact that same-sex couples and the fight for gay rights are here to stay.