Monday, October 5, 2009

Supreme Court of Argentina to Hear Same Sex Marriage Case

The Argentine Supreme Court is to decide a case on same sex marriage. The issue is a hot one in Latin America and is slowly becoming an important side to the political agenda. The case came to the Court as an appeal from the National Civil Court of Appeals, (“Cámara Nacional de Apelaciones en lo Civil”) which, in 2007, rejected an injunction brought by a couple of two women that wanted to get married. In the injunction, the couple argued that Art. 172 of the Argentine Civil Code – which requires that marriage be celebrated between individuals of different sex – was unconstitutional. The main arguments of the National Civil Court of Appeals were as follows:

1. Art. 172 of the Argentine Civil Code does not discriminate against same sex couples because homosexuals can get married; they just cannot get married to someone of their same sex.

2. The different sex requirement established by Art. 172 has an “objective and reasonable” justification”: the State´s interest in supporting couples that are prone to procreate and are the basis of the institution of the family.

The "Procurador General" - who argues in name of the State before the Court - has already argued that Article 172 is not unconstitutional and that the issue has to be decided by Congress, but not by the Courts.

My colleague Ezequiel Spector and I have shown that none of these arguments work. First, just as under US Constitutional law, the use of “sexual orientation” under Argentine law is a “suspicious classification,” which makes the norm at stake presumptively unconstitutional. Given this presumption, the State has the burden of showing that there are “compelling State interests” that justify the distinction posed by Art. 172. In the past, the Argentine Supreme Court has held that legal distinctions such as “nationality” and “national origin” are “suspicious classifications” and, therefore, presumptively unconstitutional.

Second, the argument that the State has an interest in supporting couples that will procreate is likely based on the assumption that, if the number of homosexual marriages rises, the number of heterosexual marriages will decrease; if the state permits homosexual marriage, reproduction will decrease and, some day, society will disappear. This argument, however, will not do it: it is not clear that the number of heterosexual marriages would decline were same sex marriage legalized. By no means would heterosexuals start getting married to people of their own sex simply because same sex marriage is legal. In fact, were same sex marriage banned, the number of heterosexual marriages would not necessarily increase - or, at least, it would not increase because of the ban, which would not make homosexuals marry heterosexuals merely because same sex marriage is not allowed. In other words, contrary to what the Court seems to be claiming, there is no zero sum game between heterosexual marriage and same sex marriage. Furthermore, of course, the argument by the Court of Appeal assumes that married couples will necessarily decide to have kids - an obviously false assumption.

Finally, the Court of Appeals also argued that the prohibition respects our prevailing values. The Court concluded that, according to these values, same sex couples do not qualify as a family — “family” is understood as a union between a man and a woman. Now, with regards to the notion of prevailing values, it is important to say that prevailing values are majoritarian values. Now, in a liberal polity like Argentina, the mere fact that marriage has traditionally been conceived as a union between individuals of different sexes does not satisfy the high standard of “imperative State interest” applicable to “suspicious classifications.” This was the position of the Supreme Court of Massachussets in Goodrige v. Department of Public Health 798 N.E.2d 941 (Mass. 2003) where a local law that bannned same marriage was considered unconstitutional. The aim of a liberal constitution is to protect those individuals whose lifestyle is not popular and are more likely to be discriminated against and oppressed by the majority. Just as any other constitution with liberal roots, the aim of the Argentine Constitution is the protection of minorities by means of the establishment of individual rights. The values of the majority do not need to be defended: they are safe precisely because they prevail over other values.


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  2. Interesting post. I think you are incorrect, however, that homosexuality is considered a "suspect class" in the United States. I am fairly certain that courts have been unwilling to extend the status of suspect class to groups other than racial, ethnic, and religious minorities, and courts up to now have largely applied only rationality review rather than strict scrutiny to classications based on sexual orientation. Proving a "compelling governmental interest" is not required under rationality review.

    Even gender has only "quasi-suspect class" status according to Supreme Court caselaw and receives only intermediate scrutiny. I think with the current political makeup of the Court it is unlikely that homosexuals will be put under the suspect class label any time soon.

  3. Hello Martín. I wonder how common is it for Argentinian appeal courts to include in their judgments references to decisions from foreign courts, particularly U.S. Supreme Court decisions.

  4. Hi Greta, hi Joel. With regards to sexual orientation, I was thinking of L. Tribe's view that homosexuality is implicitly included in the list of suspect classes - if I recall properly, I think Tribe thinks that it should be expressly included.
    With regards to Joel's question, lower courts do not usually quote foreign decisions. They often quote our Supreme Court to justify what they say, but they do so very selectively because civil and commercial courts do not feel obliged to use constitutional arguments. They take the civil and commercial cods as their Bibles and act accordingly. This comes from the formalist legal education that I think we discussed earlier in the blog.


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