The New York City Bar Association cites last year’s U.S. Supreme Court rulings that struck down a portion of the Defense of Marriage Act and California’s Proposition 8 in a brief filed with the country’s Constitutional Court on behalf of Luis Felipe Rodríguez Rodas and Edward Soto of Cali and Julio Albeyro Cantor Borbón and William Alberto Castro of Bogotá who challenged Inspector General Alejandro Ordóñez Maldonado’s efforts to nullify their unions. It also notes that no federal court has ruled in support of state gay nuptials bans since the landmark decisions.
“The evolution of the cases that challenge legislation against marriage in the United States have made the great weight of scientific, legal and historic authority that is in favor of allowing same-sex marriages clear,” writes Hunter T. Carter. “The cases also demonstrate that the arguments against marriage between people of the same sex are easy to refute. And that they are often based on refuted science, animus or religious beliefs that should not be taken into account in the determination of public policy.”
The brief the Impact Litigation Project at American University Washington College of Law in D.C. filed with the Constitutional Court also cites the U.S. Supreme Court’s DOMA and Prop 8 rulings. It additionally refers to marriage decisions in Massachusetts, South Africa, Brazil and Spain that upheld the “human dignity” of same-sex couples.
“Marriage provides dignity to married couples, dignity that unmarried couples cannot access,” reads the brief. “This reasoning is even more clear when the decision appeals to the humiliation that children of same-sex couples whose marriages are not recognized suffer.”
The Constitutional Court in 2011 ruled same-sex couples could legally register their relationships in two years if Colombian lawmakers did not pass a bill that would extend to them the same benefits heterosexuals receive through marriage.
The Colombian Senate last April overwhelmingly rejected a measure that would have allowed gays and lesbians to tie the knot.
A handful of same-sex couples have exchanged vows in the country since the Constitutional Court’s deadline passed last June. Ordóñez has petitioned the tribunal to overturn rulings that allowed them to marry.
Rodríguez and Soto last June applied for a marriage license in Cali, but a notary rejected it on the grounds he did not have the authority to allow same-sex couples to marry. A judge subsequently ruled in favor of the men, but Ordóñez challenged the decision.
A Bogotá judge last July married Cantor and Castro after a court in the Colombian capital granted them a marriage license. Ordóñez two months later petitioned the Constitutional Court to block the union.
Cantor and Castro and Rodríguez and Soto specifically referenced the Constitutional Court’s 2011 ruling in their petitions that urge it to recognize their right to marry.
The Constitutional Court on April 1 announced it would consider couples’ cases.
It specifically asked government agencies to state whether they allow same-sex couples to marry or prevent them from doing so. The Constitutional Court also said it would accept amicus briefs and other submissions.
“The role of the constitution is to not force people to confirm to the wishes of the majority,” says the Impact Litigation Project in its brief. “Precisely, one of the roles of the constitution is to protect people from the wishes of their own majorities when they have resulted in the discrimination of minorities.”
Mauricio Albarracín Caballero, executive director of Colombia Diversa, a Colombian LGBT advocacy group, told the Washington Blade on Thursday the DOMA decision is a “very important point of reference” for the Constitutional Court.
“[It] can learn a lot from the Windsor case,” he said.
Neighboring Brazil is among the more than dozen countries that have extended marriage rights to same-sex couples.
The Mexican Supreme Court on Tuesday ruled in favor of 39 people who challenged the constitutionality of a Oaxacan law that bans gay marriage. The same tribunal in 2012 ruled in favor of three same-sex couples who separately sought legal recourse — known as an “amparo” in the Mexican judicial system — that would allow them to marry in the state.
Gays and lesbians have been able to marry in Mexico City since 2010. Same-sex couples have also exchanged vows in Jalisco, Coloma, Chihuahua, Quintana Roo and other Mexican states as the issue gains additional traction in the country.
Chilean lawmakers continue to consider a bill that would allow same-sex couples to enter into civil unions. President Michelle Bachelet last year publicly backed marriage rights for gays and lesbians during her presidential campaign.
Lawmakers in neighboring Perú on Tuesday are scheduled to consider a civil unions bill.
Carter — whose husband is Colombian — testified before the Colombian Senate last year in support of the same-sex marriage bill that lawmakers struck down.
He noted in the brief he filed with the Constitutional Court on behalf of the New York City Bar Association that 64 percent of the population of North and South America live in jurisdictions that have extended marriage and other forms of legal recognition to same-sex couples. They include Canada, Uruguay, Argentina and 18 U.S. states and D.C.
“I’m a family member, a neighbor, and an investor; I’m a stakeholder,” Carter told the Blade. “Today we were able to present from the most auspicious and authoritative bar association in the United States a thorough review of the very considered legal judgment in U.S. courts, in every corner of the country from local to national, that marriage discrimination does not stand up to scrutiny as supported anything other than myths and harmful stereotypes.”