Same Sex Marriage in Argentina
In recent years, same sex marriage has become one of the hottest legal and political topics worldwide. Latin America is no exception to this rule. Recently, in September 2007, the National Civil Court of Appeals, (“Cámara Nacional de Apelaciones en lo Civil”), rejected an injunction brought by a couple of two women that wanted to get married. In the injunction, they said that Art. 172 of the Argentine Civil Code – which requires that marriage be celebrated between individuals of different sex – was unconstitutional. The case is now before the Argentine Supreme Court. The Court has yet to determine whether or not it will rule on the case. This post will analyze the main arguments provided by the National Civil Court of Appeals and speculate as to how they will be received by the Supreme Court.
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.
3. Finally, the human rights conventions invoked by the plaintiffs do not support same sex marriage because their explicit reference to the right of men and women to marriage should be understood as making reference to their right to heterosexual marriage. The requirement that spouses should not be of the same sex has to do with the very essence of marriage.
We will discuss these arguments in turn.
1. Does Art. 172 discriminate against same sex couples?
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.
2. Is there a “compelling state interest” that justifies the discrimination made by Art. 172?
According to the Court, the State has an interest in favoring those unions which, generally speaking, procreate. This argument is likely based on the following assumption: 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. Furthermore, the Court 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.
However, 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 actually increase: the ban on same sex marriage 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 isn´t a zero sum game between heterosexual marriage and same sex marriage.
With regard 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.
3. International Conventions and Same Sex Marriage
The injunction presented by the plaintiffs had invoked certain international human rights conventions. They appealed to Section 17 of the American Convention on Human Rights, which establishes “[t]he right of men and women of marriageable age to marry and to raise a family.” Furthermore, they mentioned Section 16 of the Universal Declaration of Human Rights, which says that “[m]en and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. . . . ” Finally, they invoked Section VI of the American Declaration of the Rights and Duties of Man, which claims that “[e]very person has the right to establish a family. . . .”
Notwithstanding what the Court says, the fact that the text of the law does not mention same sex marriage does not imply that it is banned. It is not unusual for Courts to interpret the text of a norm as including a category that the text does not explicitly mention. For instance, in Canada, in Vriend v. Alberta  1 S.C.R. 493 the Supreme Court of Canada stated that homosexuals are a discrete and insular minority and, thus, courts should revise with special care the constitutionality of those norms that made distinctions on the basis of sexual orientation. The Canadian Supreme Court claimed that Section 15 of the Canadian Charter of Rights and Freedoms is applicable whenever “analogous reasons” to those referred to in Section 15 of the Charter are present – the text of Section 15 of the Charter is very similar to that of Section 1.1 of the American Convention and that of Section 2.6 of the Covenant. Following the line of argument, in the famous Halpern v. Toronto (city) (2002), 163 O.A.C. 276 the Ontario Court of Appealstated that local legislation that banned same sex marriage was unconstitutional.
Individuals decide to get married for many reasons. Some of them are willing to spend their lives together and have kids, but choose to get married before having kids because they prefer to be married before having kids. There are also individuals that get married but do not want to have kids, or people that, even though they cannot have children for biological reasons, still want to be married. People may want to get married because of the intimacy enjoyed by married couples, because of company, social recognition, economic benefits, and so on. It would be hard to find anyone that would hold the view that marriage is only about procreation. Contrary to what the National Civil Court of Appeals says, the very essence of marriage is not necessarily procreation.