Civil Rights Debate for the New Millennium: Should Gay Couples Be Legally Recognized?
During the last 10 years, equal rights for homosexual partnerships has emerged as a chief human rights issue in democratic nations around the globe. The issue is in the forefront of civil rights debate throughout the Americas, as the peaks of the struggles for women’s rights and rights of ethnic groups have passed – though many of their claims are still far from resolved. The issue of legal recognition of civil unions for homosexual couples is squarely on the U.S. political agenda, and, in the past two months alone, two Latin American countries, Argentina in July and in Mexico earlier this month, saw congressional approval of same-sex unions.
In recent months, Costa Rica has become the latest Latin American country, and the first country in Central America, to debate the issue of homosexual civil unions. After months of talk concerning a proposed national referendum to determine the legality of such unions, the Constitutional Chamber of the Supreme Court (Sala IV) issued a 5-2 ruling Aug. 10 saying the question is not an appropriate one for a popular vote and must be left in the hands of the country’s legislators.
While the homosexual community celebrated the decision, the Roman Catholic Church voiced concerns that allowing civil unions contradicts church doctrine. The church, the primary force opposed to granting civil unions, holds steadfast to the belief that matrimony is intended solely for unions between a man and a woman. In the view of the Roman Catholic Church, legal recognition of heterosexual unions conflicts not only with Catholic doctrine, but also with Costa Rica’s constitution, which recognizes the Roman Catholic Church as the nation’s official religion.
The final say on the legality of civil unions now lies in the hands of the Legislative Assembly. And because the issue is highly controversial in Costa Rica, it may remain there for some time. Meanwhile, the embers of this hot topic continue to glow in those on both sides of the issue.
This week, The Tico Times met separately with the Roman Catholic priest Mauricio Granados, the chancellor of San José’s Metropolitan Parish and spokesperson for the Catholic Church of Costa Rica, and Yashin Castrillo, the lawyer who sparked the national civil unions debate in 2003 with his lawsuit presented to the Sala IV in an attempt to obtain marital rights for him and his partner. Following are excerpts from those interviews.
The Rev. Mauricio Granados
TT: What is your opinion concerning the idea of same-sex civil unions, and what is the position of the Catholic Church in that regard?
MG: The official position of the Catholic Church regarding the recognition of members of the lesbian and gay groups is that their civil unions are not yet recognized here, but, as you know, they are in other parts of the world.
However, from the Catholic perspective, God’s plan regarding sexuality lives solely within a heterosexual couple. Homosexual acts, therefore, are seen as morally wrong. They are considered negative because they aren’t a natural sexual act, (which are those) between the feminine and masculine partners creating the existence of another human being. … From that point of view, the Catholic Church considers that the heterosexual couple is responsible for the reproduction of the human species and the existence of love that is shared between the female and a male.
We see homosexual marriage as a disruption of the natural order in some form. Why? Because when a society values a sexual norm, for example in a sexual education class in schools and colleges, a legitimate partnership that exists between a man and a woman is taught to the students. That is not to say that everyone who is homosexual is going to Hell. That’s not the idea at all.
The point here is that, if the society is going to present other options to younger generations, it could change the natural order of things. Because of that, the Catholic Church is against civil unions.
And, from the point of view of human rights, which is the theme everyone is talking about, we want to say that human rights don’t exist for homosexual marriages. In Article 30 of the Costa Rican Family Code, it says that marriage between people of the same sex is prohibited. The Sala IV has said that the only matrimony that exists in Costa Rica is heterosexual. (Therefore,) the Legislative Assembly would be able to legislate to regulate some of the aspects for these types of same-sex partnerships, but not allow for legal matrimony. And that’s where we are now.
What is said in the Costa Rican constitution that indicates the country is Catholic?
Article 75 establishes that the country is Catholic and that citizens have religious freedom. This comes from the Spanish rule of the country in the 13th and 14th centuries. It was established then that theCatholic religion would be included in every iteration of the Costa Rican constitution.
Do you think that, for example, if two men have lived together for 30 years, that they deserve the same marital rights as a heterosexual couple?
Costa Rican law says that this isn’t a possibility. A law can’t be passed that says a homosexual partnership is the same as a heterosexual partnership. This isn’t possible because, well, look at the word at the word matrimony. “Matri-” means mother and “-mony” means law. This is the mother law. The institution of marriage was born in ancient Rome as a form of protecting the mother and her children. So, this institution was created to safeguard rights.
In the case of two people of the same-sex uniting, the problem is completely different in that the status can’t be conferred by a legal body. So, the Legislative Assembly is looking to determine what rights people in same-sex partnerships deserve. However, the Catholic Church, which already has a defined policy, considers, from a moral point of view, any such recognition to be negative.
What do you think about Argentina and Mexico, which are Catholic countries as well, accepting civil unions and homosexual marriages?
It seems to me that those decisions were made by their parliaments, for example by the Congress of Mexico and of Argentina, and were made in response to very strong movements in the gay and lesbian community that pushed the issue that they were being deprived human rights. It seems to me that, if those had been decisions made by a popular vote, they never would have passed. I think that is the case here as well. A day after the Sala IV’s decision, the newspaper La Nación published the results of a survey that said that 70 percent of the Costa Rican population is against the idea of civil unions.
I think that, in a democracy, there should be as few orders as possible … Often, the vote for homosexual unions is decided by a judge or a congress and is not the decision of the entire country. It creates large amounts of doubt between the people of the country and the law-making bodies.
I think society, particularly here in Costa Rica, should reflect on the type of societal model it wants to pass down to their children to be able to end this disconnection.
I think it is very dangerous for a situation that has polarized people so much to be decided by a governing body. It limits the function of democracy.
If civil unions are recognized, what effect do you think it will have in the country, as well as in the Costa Rican Catholic Church?
It’s really a hypothesis. We don’t know exactly what is going to happen. Obviously, the Church isn’t going to change its position on the matter. … We are going to continue proposing the idea of Jesus Christ as our savior, as we have come to understand it. The other option is to give up on the idea of the Catholic Church, and we give more importance to the law of God than to the decision of the State.
Do you think that as fundamental cultural norms are altered, such as with further recognition of homosexual unions, that the Catholic Church would consider being progressive and adjust to those changes?
In 2,000 years of Catholic history, the position of the church has been to serveChrist. Have there been sins? Oh, there have been too many sins to count. But that is not the worry of the church. We expect sins and look to forgive them. There have been changes in regimens and policies around the world that have attempted to alter the fundamental beliefs of the church; but the church has not, and will not, change.
TT: You have been, and continue to be, very involved in the issue of obtaining rights for same-sex civil unions. What is your history with this issue?
YC: I became a lawyer in 1996. My graduation thesis looked into the issue of relationships between men in same-sex partnerships. The country’s penal code denies equal rights to these partnerships, and I proposed changes.
My proposal (was accepted and) effectively revised Articles 168, 169, 170 and 171 of the penal code to alter the description of permissible sexual relationships between men. This was the first adaptation of any Costa Rican law regarding men’s sexual rights.
After that, in 2003, I filed a lawsuit with the Sala IV concerning the unconstitutionality of the law concerning same-sex relationships in Article 14 of the Family Code.
This article of the code prohibits marriage between people of the same-sex.
The lawsuit was resolved in May 2006, three years later, when the Sala IV voted 5-2 against the lawsuit, finding no constitutional right to homosexual marriage. But those two votes in 2006 provided a push for today’s movement; they showed that the rights of homosexual partnerships were beginning to be positively considered by some members of the court.
In 2003, when I filed the lawsuit, it was the first time anyone had filed a lawsuit of that nature in all of Latin America.
In 2006, the Sala IV voted 5-2 against the idea of homosexual partnerships, yet now, four years later, the vote was 5-2 against the idea of a referendum vote to determine (the legality of) civil unions, which is now considered a human rights issue. This is obviously an indication of progress for the homosexual community, correct?
OK. Look at the U.S., for example. In Boston this year on Jan. 14, a judge resolved a situation exactly like the one we have here. Similar to the situation here, there are two opposing groups on the issue. One is the religious or conservative group that disagrees with the idea of giving rights to homosexuals. Then there are those that hope that same-sex partnerships are given the same human rights as heterosexual couples.
The religious group in Boston attempted to take the vote to a referendum and the judge rejected it – the same as here.
The principal arguments against a referendum hinge on human rights. Equal human rights are inherent to every person from the day they are born. They cannot be subjected to a vote, because the result of that vote can deprive people of equal rights. The fact that the Sala IV didn’t allow human rights to be subjected to a vote of the population was indeed a sign that our plight is being better understood by the judiciary.
It seems that the argument for equal marital rights sometimes gets tangled up with the idea of approving gay marriage. If civil unions are granted, what rights will same-sex partnerships be awarded that they currently do not have?
There are several, with the largest being the right to health (care). At this time, in same-sex partnerships, neither partner can insure the other. It is not allowed. The other is the right to a pension. That means that, if someone dies for whatever reason, the surviving partner can claim the pension of the widow or widower.
Another right is that of benefits. Benefits are offered to families. For example, if a couple builds a house, they are given a family bond or credit to construct together. Same-sex partnerships are currently denied that.
Another is the issue of divorce or termination of relationship. When a same-sex partnerships ends, there is no judicial process, so, for example, if one partner has a well-paying job and the other does not, there is no reconciliation offered as there is in the case of a heterosexual partnership. So, when a same-sex relationship ends, there is no process for deciding who gets the cars, who gets the home or who gets their shared possessions.
All of these are human rights, and none of them are currently granted to same-sex partnerships.
If the Legislative Assembly does not recognize that civil unions and the human rights you mentioned are denied, do you think that will hurt the progress of the homosexual community in Costa Rica?
If you look at the history of the development of human rights in democratic nations, eventually, human rights have a good chance of being recognized. Many of these examples can be seen in the U.S.
In 1954, in the case of Brown vs. the Board of Education, the Supreme Court changed the criteria of separate but equal in U.S. schools. Prior to that ruling, the reversal of separate but equal had been rejected on two occasions. Finally, over time, it was understood that the idea of separate but equal was indeed unconstitutional.
What we are dealing with here in Costa Rica we consider to be clearly unconstitutional. However, if you look at the history of civil rights in the U.S., even after (civil rights were recognized), there were still battles for civil rights for years afterwards.
Civil rights issues take time to evolve and it takes time for opposition to a sensitive issue to accept that human rights are being denied. There are numerous blocks and resistance put up before rights are granted.
In Costa Rica, a country that prides itself on being an example to the world on human rights, an issue like this has yet to be understood, at least by the majority.
Why? Because the ground of human rights is constantly shifting. Each time there is a small uprising in an issue, or it becomes a matter of national attention, more people, people who once were perhaps against the issue, begin to understand that human rights are being withheld from a particular group; women, indigenous people, blacks, elderly people, foreigners. All of those people, at some point, had, or are still having, their human rights denied. In Costa Rica, usually those wrongs are made right. There is still work to be done in the case of same-sex partnerships, but the progress is there. We are already seeing an important change.
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