This month of May, the topic of equal marriage resurfaced in Costa Rican society. This issue has generated conflicting and opposing views from both social and legal aspects.

In 2006, the Costa Rica Supreme Court issued a decision stating that the legal limitation for same sex couples to get married does not violate the right to liberty contained both in the Family Code and the Constitution. Furthermore, the Court indicated that it was not appropriate to give equal rights to an unequal situation. According to the court there is no inequality as both heterosexuals and same sex couples are different classes of people. For instance, the point of the court is that you cannot compare apples to oranges. Basically, apples have the right to get married, but oranges do not. Resolution 2006-7262.

Four years later, the same Court issued another decision related to same sex marriage, but this time it addressed a petition to bring the matter of same sex marriage to a referendum. The goal was to get the opinion and decision of the people at large and not to leave it only to the Supreme Court or Congress to decide. However, the supreme court decided that submitting this matter to a referendum was not protective of equal rights, on the contrary, it would violate equal rights. While the referendum is an appropriate democratic process to submit a matter to public decision, is not an appropriate process when it is used for the majority to decide the rights on the minority. For instance, apples do not get to decide if oranges are to get married. Resolution 13313-2010.

In this last decision, the Court makes effective protection of fundamental rights of minorities, by preventing the analysis of the rights of the oppressed by the oppressors. This resolution demonstrates the direction of the court towards the protection of minorities.

LGTB Walk in downtown San Jose

Subsequently, there were two other legal events of great significance:

1. The advisory opinion issued by Inter-American Court of Human Rights, and
2. Resolution 12782-2018 of the Supreme Court

On the advisory opinion by Inter-American Court of Human Rights (IACHR)

The Costa Rican government requested the Inter American Court to issue an opinion on the matter of gender identity and the possibility to create a legal instrument to allow same sex “marriage”.

The Inter American Court stated (among other things) that:

1. The American Convention of Human Rights does not establish a single concept of family. What this means is that family can have various forms.
2. It stresses the importance for all types of families to receive the protection of the law.
3. The definition of family should not be restrictive.

In addition, the Inter American Court stated that:

“Creating an instrument that produces the same effects and enables the same rights as marriage, but that does not bear that name is completely meaningless, except that of socially pointing to same-sex couples with a name that indicates a difference but stigmatizing it, or at least as a sign of underestimation. Accordingly, there would be marriage for those who, according to the heteronormativity stereotype, were considered “normal” while another legal instrument with the same effects but with a different name would be indicated for those who were considered “abnormal” according to the aforementioned stereotype. Based on this, for the Court, the existence of two classes of solemn unions to legally consolidate the heterosexual and homosexual community of coexistence is not admissible, since a distinction based on the sexual orientation of people would be configured, which would be discriminatory, and therefore incompatible with the American Convention of Human Rights.”

The IACHR opinions are mandatory for the signatories of the Treaty, which is why Costa Rica is subject to its application.

LGTB activists in front of Supreme Court in San Jose. August 2018. Photo by La Prensa.

On Resolution 12782-2018 of the Supreme Court

As a consequence of the resolution of the IACHR, the Supreme Court, through the aforementioned resolution, veered in a different direction regarding constitutionality of article 14 of the Family Code, which does not allow marriage for same sex couples, stating that:

“It is unconstitutional and a violation of the right to equality, covered by articles 33 of the Political Constitution and 24 of the American Convention on Human Rights. On the one hand, the challenged norm translates by itself into a prohibition for same-sex marriage, denying access to it based on their sexual orientation. On the other hand, it also affects the possibility for same sex couples to obtain recognition of de facto union (common law marriage), since section 242 of the Family Code which regulates de facto unions refers to the limitations of section 14 of the same code.

Considering the unconstitutionality of section 14 of the Family Code, the Court continued stating:

“… The Legislative Assembly […]  is urged that within 18 months, counted from the full publication of this pronouncement in the Judicial Bulletin, to adapt the legal framework with the purpose of regulating the scope and effects derived from same-sex couple relationships, in the terms set forth in this judgment… ”

The deadline has come, we are currently hovering on May 26, 2020 and with this, given the lack of legislation by Congress, people will have access to basic rights such as being able to generate marital property or a have access to the spouse’s pension.

Congratulations to all those who are one step closer to equality. Hopefully we will never forget our duty to return with dignity the rights to those who, through ignorance, were taken from them.

While initially, the conservatives tried to limit the access to marriage for different couples through a false equivalent, at the end of the day, the courts decided that there should not be discrimination between apples and oranges, we are all on the same table, and we all have the right to make our own fruit salad.