San José, Costa Rica, since 1956

High Court Rules against Same-Sex Marriage

The Constitutional Chamber of the Supreme Court (Sala IV) Tuesday ruled against same-sex marriage, rejecting a lawsuit filed in 2003 by lawyer Yashin Castrillo and eliciting the indignation of members of the country’s gay community.

The ruling, which had the support of five of the seven Sala IV justices, states that Costa Rica’s constitutional norms on marriage do not apply to gay couples because “heterogeneous couples are not in the same situation as homosexual couples,” according to a statement from the Judicial Branch. It also specifies that the legal prohibition of same-sex marriage does not violate the constitutional principle of freedom, as Castrillo, who wishes to marry his partner, had claimed in his lawsuit.

However, justices also stated that “an absence of adequate regulation exists” regarding same-sex unions, and that authorities should evaluate existing legislation to provide greater clarity.

Castrillo said the Sala IV’s decision resulted from social prejudices and stigmas based on religious criteria.

“It is a disgrace to Costa Rican society that a human-rights violation has become official, placing us back in the cavemen era,” Castrillo told The Tico Times. “If at some point, Costa Rican society felt indignation at the attacks on the WorldTradeCenter, the (high court’s) decision can be viewed as an attack on human dignity. It is a missile with the same destructive power on human dignity and respect.”

Abelardo Araya, president of the Diversity Movement, a group of approximately 30 Gay-Lesbian-Bisexual-Transgender (GLBT) activists, said the group is not surprised at the decision.

“Groups exist that still resist cultural change,” he said. Nevertheless, the ruling does not deny the possibility of same-sex civil union, an issue that requires clarification, he pointed out.

Castrillo said that in two or three months, the time during which he expects to receive official notification of the ruling and the reasons behind the decision, he might request a clarification of the statement indicating that legislation should be further examined. According to the lawyer, if this

statement is interpreted as an instruction to give certain legal rights to homosexual couples, such as those deriving from civil union, then the ruling can be considered a partial success.

However, if this is not the case, the lawyer said he will submit his case to the Inter-American Human Rights Commission to be filed before the Inter-American court, where he expects Costa Rica would lose and be ordered to pay millions in material and moral damages.

Path toward Marriage

Castrillo’s odyssey started in July 2003, when he presented an application to marry his partner at the Family Tribunal in Alajuela, northwest of San José.

Approximately one week later, the tribunal denied his petition based on Article 14 of Costa Rica’s Family Code, which explicitly prohibits same-sex marriage, Castrillo explained. (Article 176 of the Penal Code brands same-sex marriage as an offense, and declares it punishable by six months to three years in prison.)

Soon after, the attorney filed a case asking the Sala IV to declare Article 14 of the Family Code unconstitutional. A month later, the court accepted his case for study. A ruling in favor of Castrillo would have changed both the Family Code and the Penal Code, so the case required extensive study (TT, Feb. 20, 2004).

Castrillo, who requested a hearing when he submitted his case, said the court accepted his request because of the complex nature of the topic, which countries around the globe have debated fervently in recent years. “Hearings are requested when the nature of the case is complex and there is a marked societal interest in the suit,” Castrillo told The Tico Times.

Countries that have succeeded in making gay marriage legal include the Netherlands, the first country in the world to do it in 2001, Belgium, Spain and Canada.

Among the countries that allow samesex civil union, which does not necessarily offer the same rights as marriage, are New Zealand, since 2004, and Argentina, where its capital, Buenos Aires, became the first Latin American city to allow it in 2003.

Certain states in the United States, including Vermont and Connecticut, allow civil union, and Massachusetts became the first U.S. state to grant marriage licenses for same-sex couples in May 2004. However, state legislators have proposed banning gay marriage through an amendment to Massachusetts’ Constitution, according to The Boston Globe.

The public hearing in Castrillo’s case, held May 4 at the court building in downtown San José, gave the seven Supreme Court justices who reviewed the case the chance to hear arguments from both sides of the issue (TT, May 5).

Castrillo and two other attorneys, Mario Castillo and Rose Mary Madden, presented arguments in favor of gay marriage attempting to show the prohibition as discrimination, a human-rights violation, and the result of a non-secular legislation.

Castrillo argued that if same-sex civil union and marriage are viewed as unconstitutional because they violate religious principles, then perhaps divorce should be illegal too.

Gay marriage opponents, including private lawyers Jorge Fisher, Alexandra Loría and Wilber Barrantes, and Government Attorneys Farid Beirut and Fernando Castillo, based their counterarguments on religion, morality, and the concept of procreation.

“What will happen when a stepfather decides he wants to join his stepdaughter in matrimony, and they say not being able to is against human rights? What about relationships between people and animals?” Barrantes asked during the hearing, when he posed the argument that marriage should be reserved for heterosexuals.

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