Same-sex marriage in Spain
|Legal status of
*Not yet in effect
Same-sex marriage in Spain has been legal since 3 July 2005. In 2004, the nation's newly elected Socialist Party (PSOE) government, led by Prime Minister José Luis Rodríguez Zapatero, began a campaign for its legalization, including the right of adoption by same-sex couples. After much debate, a law permitting same-sex marriage was passed by the Cortes Generales (Spain's bicameral parliament, composed of the Senate and the Congress of Deputies) on 30 June 2005 and published on 2 July 2005. The law took effect the next day, making Spain the third country in the world to allow same-sex couples to marry, after the Netherlands and Belgium, and 17 days ahead of Canada.
The ratification of this law was not devoid of conflict, despite support from 66% of the population. Roman Catholic authorities in particular were adamantly opposed, criticising what they regarded as the weakening of the meaning of marriage. Other associations expressed concern over the possibility of lesbians and gays adopting children. Demonstrations for and against the law drew thousands of people from all parts of Spain. After its approval, the conservative People's Party challenged the law in the Constitutional Court.
Approximately 4,500 same-sex couples married in Spain during the first year of the law. Shortly after the law was passed, questions arose about the legal status of marriage to non-Spaniards whose country did not permit same-sex marriage. A ruling from the Justice Ministry stated that the country's same-sex marriage law allows a Spanish citizen to marry a non-Spaniard regardless of whether that person's homeland recognizes the partnership. At least one partner must be a Spanish citizen in order to marry, although two non-Spaniards may marry if they both have legal residence in Spain.
The November 2011 general election delivered a landslide victory to the People's Party, whose leader Mariano Rajoy said that he opposed same-sex marriage, but any decision about repealing the law could be made only after the ruling of the Constitutional Court. On 6 November 2012, the law was upheld by the Court with 8 support votes and 3 against. Minister of Justice Alberto Ruiz-Gallardón announced that the government will abide the ruling and the law will not be repealed.
During the 1990s and early 2000s, several city councils and autonomous communities had opened registers for civil unions that allowed benefits for unmarried couples of any sex, although the effect was mainly symbolic. Registries were created in 12 out of 17 of Spain's autonomous communities; Catalonia (1998), Aragon (1999), Navarre (2000), Valencia (2001), Balearic Islands (2001), Madrid (2001), Asturias (2002), Andalusia (2002), Extremadura (2003), Basque Country (2003), Canary Islands (2003) and Cantabria (2005). Spanish law already allowed single people to adopt children; thus, a same-sex couple could undertake a de facto adoption, but the partner who was not the legal parent had no rights if the relationship ended or the legal parent died. Same-sex marriages were not legal in the autonomous communities, because the Spanish Constitution gives the State sole power to legislate marriage.
The Socialist Party (PSOE) manifesto for the 2004 general election included the pledge of amending the Civil Code to legalize same-sex marriage, granting it the same status as heterosexual marriage in order to "ensure full social and legal equality for lesbians and gays". After the socialists' victory in the election, the new Prime Minister José Luis Rodríguez Zapatero promised at his inauguration address to bring this change forward: "The moment has finally arrived to end once and for all the intolerable discrimination which many Spaniards suffer because of their sexual preferences. (...) As a result, we will modify the Civil Code to recognize their equal right to marriage with the resulting effects over inheritance, labor rights and social security protection".  On 30 June 2004, the then Minister of Justice Juan Fernando López Aguilar announced that the Congress of Deputies had provisionally approved a government plan for legislation to extend the right of marriage to same-sex couples. López Aguilar also announced two propositions, introduced by the regional Convergence and Union party of Catalonia: one introduced legal status for both opposite- and same-sex common-law unions (parejas de hecho, "de facto unions"), while the other permitted transgendered people to legally change their name and sex designation without the requirement of surgery.
The bill regarding same-sex marriage was approved by the Cabinet on 1 October 2004, submitted to Parliament on 31 December, and passed by the Congress of Deputies on 21 April 2005. However, it was rejected on 22 June 2005 by the Senate, where the opposition People's Party held a plurality of the seats. The bill was returned to the lower house, which holds the power to override the Senate, and final approval was given to the bill on 30 June 2005 with 187 "yes" votes, 147 "no" votes, and 4 abstentions.
With the final approval, and enactment of the bill on 2 July 2005, Spain became the third country in the world to formally legalize same-sex marriages nationwide, after the Netherlands and Belgium.
The first same-sex wedding took place eight days after the bill became law, and was celebrated in the council chamber in the Madrid suburb of Tres Cantos by Carlos Baturín and Emilio Menéndez. The first same-sex marriage between women took place in Barcelona eleven days later.
In spite of these steps toward equal treatment, a legal flaw remained: if children were born within a lesbian marriage, the non-biological mother was not legally regarded as a parent; she still had to undergo the lengthy financial process of adoption. This right was granted to heterosexual couples (married or not), where a stepfather could declare his wife's children to be his without further process. On 7 November 2006, the government amended the law on assisted reproduction, allowing the non-biological mother to be regarded as a parent alongside her female spouse who is the birth-mother.
Ratification of Law 13/2005
The projected bill announced on 30 June 2004 by the Minister of Justice was studied by the General Council of the Judiciary. Although the General Council admitted that the existing discrimination against homosexuals could not be condoned, it was quite critical about extending marriage toward same-sex couples (including collateral adoption). It argued that the extension was not demanded by the Constitution, and that ending discrimination could be achieved through other legal means, such as the extension of civil unions.
Despite this negative report, the government presented the bill to Congress on 1 October 2004. With the exception of the People's Party and members of the Democratic Union of Catalonia, the different parliamentary parties favoured the reform. On 21 April 2005, Congress approved the bill, with 183 "yes" and 136 "no" votes and 6 abstentions (including a member of the People's Party). The bill to allow same-sex marriage in Spain was short: it added a new paragraph to article 44 of the civil code, saying that Matrimony shall have the same requisites and effects regardless of whether the persons involved are of the same or different sex.
In accordance with constitutional provisions, the text approved by the Congress was then submitted to the Senate for final approval, change or veto. On 21 June 2005 experts were called to the Senate to debate the issue. The expert's opinions were diverse; some stated that gay adoption had no effect on a child's development, except for perhaps a higher tolerance towards homosexuality. However, psychiatrist Aquilino Polaino, called by the People's Party as an expert, called homosexuality a pathology and emotive disorder. Among other assertions that generated debate, he claimed that "many homosexuals have rape abuse antecedents since childhood" and that homosexuals generally come from families with "hostile, alcoholic and distant" fathers, and mothers who were "over protective" toward boys and "cold" toward girls. Prominent People's Party members later rejected Polaino's assertions.
|Same-sex marriage in Spain|
|Ley 13/2005 por la que se modifica el Código Civil en materia de derecho a contraer matrimonio. (Law 13/2005 that amends the Civil Code regarding the right to contract marriage)|
|Date signed||1 July 2005|
|Introduced by||Prime Minister José Luis Rodríguez Zapatero (PSOE)|
The Senate vetoed the text submitted by the Congress. The veto was proposed by the People's Party, which held the majority of the seats, and by the Democratic Union of Catalonia, and was approved by 131 "yes" and 119 "no" votes and 2 abstentions. As a result, the text was sent back to the Congress. On 30 June 2005 it was approved by Congress, which, in accordance with the constitutional provisions, overrode the Senate veto. This was achieved with 187 "yes" votes (including a member of the People's Party, Celia Villalobos), 147 "no" votes, and four abstentions. The veto override implied its approval as law. The vote was held after Zapatero unexpectedly took the floor of parliament to speak in its support, saying We are expanding the opportunities for happiness of our neighbors, our colleagues, our friends and our relatives. At the same time, we are building a more decent society. Mariano Rajoy, the leader of the opposition People's Party, was denied the opportunity to address parliament after Zapatero's appearance, and accused Zapatero of dividing Spanish society.
When the media asked King Juan Carlos if he would sign the bill that was being debated in the Cortes Generales, he answered that he was the King of Spain, not of Belgium – a reference to King Baudouin of Belgium, who refused to sign the Belgian law legalising abortion. For the king to withhold his royal assent would effect a veto of the legislation. However, the king gave his Royal Assent to Law 13/2005 on 1 July 2005, and the law was gazetted in the Boletín Oficial del Estado on 2 July, and came into effect on 3 July. The king received criticism by Carlist and other far right conservatives for signing the legislation.
The bill's passage was met with concern by Catholic authorities, including Pope John Paul II — who warned of a weakening of family values — and his successor Pope Benedict XVI. Cardinal López Trujillo, president of the Pontifical Council for the Family, said the Church was making an urgent call for freedom of conscience for Catholics and appealing to them to resist the law. He said every profession linked with implementing same-sex marriages should oppose it, even if it meant losing their jobs. Gay rights supporters argued that while the Catholic Church also formally opposed opposite-sex, non-religious marriage, its opposition was not as vocal; for example, the Church did not object to the marriage of Crown Prince Felipe to Letizia Ortiz, who had divorced from a previous civil marriage. The church was unable to gather enough support to derail the bill, even though 80% of Spaniards identify as members of the Catholic Faith. Sociologists believe this may be due to the significant increase of liberalism in the realm of individual rights in recent years, where the Church traditionally had most influence, especially on family issues. A poll showed that three quarters of Spaniards believe the church hierarchy is out of touch with social reality. A complementary explanation might be that the Church's influence on Spaniards declined after the death in 1975 of the dictator General Francisco Franco, whose regime was closely linked to the Church.
Prime Minister Zapatero responded to Church criticism by saying:
There is no damage to marriage or to the family in allowing two people of the same sex to get married. Rather, these citizens now have the ability to organize their lives according to marital and familial norms and demands. There is no threat to the institution of marriage, but precisely the opposite: this law recognizes and values marriage.
Aware that some people and institutions profoundly disagree with this legal change, I wish to say that like other reforms to the marriage code that preceded this one, this law will not generate bad results, that its only consequence will be to avoid senseless suffering of human beings. A society that avoids senseless suffering of its citizens is a better society.
In any case, I wish to express my deep respect to those people and institutions, and I also want to ask for the same respect for all of those who approve of this law. To the homosexuals that have personally tolerated the abuse and insults for many years, I ask that you add to the courage you have demonstrated in your struggle for civil rights, an example of generosity and joy with respect to all the beliefs.
On 19 June 2005 there was a public protest against the law. Protesters — led by People's Party members, Spanish bishops and the Spanish Family Forum (Foro Español de la Familia) — said they had rallied 1.5 million people against what they considered an attack on the traditional family; the Government's Delegation in Madrid counted 166,000 at the same event. Two weeks after this protest, coinciding with Gay Pride Day, FELGT (Federación Estatal de Lesbianas, Gays, Transexuales y Bisexuales — the Spanish Lesbian, Gay, and Transgender Organization) estimated two million people marched in favour of the new law; police sources counted 97,000. Both marches took place in Madrid, at the time governed by the conservative People's Party.
Spanish bishops also claimed that the government, by extending the right of marriage to same-sex couples, weakened the meaning of marriage, which they defined as an involving a heterosexual couple. The Spanish Family Forum expressed concern over the possibility of gay couples adopting and raising children, and argued that adoption is not a right for the parents, but for the adopted. Gay associations replied that de facto adoption by same-sex couples had existed for a long time in Spain, since many couples were rearing minors adopted by one of the partners. Adoption by same-sex couples was already legal in Navarre, Asturias, Aragon, the Basque Country, and Catalonia before the same-sex marriage law legalized these adoptions nationwide. These associations also argued that there was no scientific basis for the claim that the parents' sexual orientation would cause developmental problems for their adopted children. This view is officially supported by the Spanish School of Psychology, which also states that homosexuality is not a pathology.
In a 2008 biography, Queen Sofia of Spain revealed that she preferred the term "civil union" to "marriage" for committed same-gender relationships. This and other alleged comments by the queen opened the Spanish monarchy to rare criticism in 2008, with the Zarzuela palace issuing an apology on behalf of the queen for the "inexact" quotes attributed to her. Antonio Poveda, president of FELGT, said his organization accepted the queen's apology, but added that there remains ill feelings by the gay community towards the queen over the comments. King Juan Carlos, known to be far more liberal than his wife, was reportedly incensed by the biography, with reporters stating the king will fire palace officials who allegedly approved official royal endorsement of the book.
Opposition court challenges
On 21 July 2005, a judge from the city of Dénia refused to issue a marriage license to a lesbian couple. The judge also filed a constitutional challenge against the same-sex marriage law with the Constitutional Court based on Article 32 of the Constitution that contains the phrase "Men and women have the right to contract marriage with full juridical equality." In August 2005, a judge from Gran Canaria refused licenses to three same-sex couples and mounted another constitutional challenge. In December 2005, the Constitutional Court rejected both challenges owing to both judges' lack of standing to file them. On 30 September 2005, the opposition People's Party decided to initiate a separate constitutional challenge, causing division within the party. The outcome was published on November 6, 2012, seven years after the challenge was presented. The Court decided to uphold the same-sex marriage law with 8 support votes and 3 against.
On 27 February 2007 the Spanish Family Forum presented an initiative signed by 1.5 million people to legislate marriage as the union of a man and a woman only (thus effectively prohibiting same-sex marriage). The initiative was rejected by the Spanish Congress. On 30 May 2007, the aforementioned judge of Dénia was condemned by the Disciplinary Committee of the General Council of Judiciary Power (Comisión Disciplinaria del Consejo General del Poder Judicial -CGPJ-) to pay 305 euros for refusing to marry a gay couple and was also strictly warned against doing it again. She attributes this action to the "propagandistic machinery" of the government.
Shortly after the law was passed, questions arose about the legal status of marriage to non-Spaniards after a Spaniard and an Indian national living in Catalonia were denied a marriage license on the grounds that India did not permit same-sex marriage. However, on 22 July another judge in Catalonia married a Spanish woman and her Argentinian national partner (the first same-sex marriage between women in Spain). This judge disagreed with his colleague's decision and gave preference to the right of marriage over Argentinian law at the time not allowing same-sex marriage.
On 27 July, the Junta de Fiscales de Sala – a body within the Public Prosecutor's Corp that advises the Minister of Justice's office – issued an opinion that lesbian, gay, bisexual, and transgender (LGBT) Spaniards can marry foreigners from countries that do not permit same-sex marriage. This marriage would be valid according to Spanish law, but did not imply automatic validity according to the foreigner's national law. A ruling published in the Official State Bulletin stated:
|“||a marriage between a Spaniard and a foreigner, or between foreigners of the same sex resident in Spain, shall be valid as a result of applying Spanish material law, even if the foreigner's national legislation does not allow or recognize the validity of such marriages.||”|
According to the instructions from the Ministry of Justice (Dirección General de Registros y Notariado), Spanish Consulates abroad may carry out the preliminary paperwork for a same-sex marriage. At least one of the marrying partners must be a Spanish citizen, residing in the Consular demarcation. However, the marriage itself can only take place at the Consulate if local laws recognize same-sex marriages (Spanish consulates in Boston, Brussels, The Hague, Amsterdam, Oslo, Toronto, Montreal, Ottawa, Cape Town, Pretoria, Stockholm, Washington, D.C., Mexico City, Lisbon, Porto, Reykjavík, Buenos Aires, Rosario, Córdoba and Mendoza, as of August 2010). In all other cases, the partners must marry in Spanish territory. Two non-resident foreigners cannot marry in Spain, as at least one of the partners must be a Spanish resident, although they both may be non-Spanish citizens.
According to the Spanish National Statistics Institute (INE), 27,357 same-sex marriages took place up to the end of 2012: 1,275 in 2005, 4,574 in 2006, 3,250 in 2007, 3,549 in 2008, 3,412 in 2009, 3,583 in 2010, 3,880 in 2011 and 3,834 in 2012.
|Year||Marriages between men||Marriages between women||Same-sex marriages||Total marriages||% same-sex marriages|
|2005 (since July)||923||352||1,275||120,728||1.06|
Most same-sex marriages in 2011 took place in: Catalonia, with 886 weddings (3.33% of all marriages in the Community for that year); Madrid, 729 (2.91%); Andalusia, 484 (1.71%); Valencian Community, 436 (2.58%); and the Canary Islands, 203 (3.60%).
Since its legalization in 2005, couples from a cross section of Spanish society have entered into same-sex marriage. Within the first year the law received royal assent, an influential socialist leader and Madrid city councilor Pedro Zerolo married Jesús Santos in January, and popular television presenter Jesús Vázquez married Roberto Cortés in March. In October 2005, Spain's prominent anti-terrorism judge Fernando Grande-Marlaska married his fiancé Gorka Gomez. In August 2006 Ourense city councilor and member of the People's Party Pepe Araujo, whose party originally opposed the law, married his fiancé Nino Crespo. In September 2006 Alberto Linero Marchena and Alberto Sánchez Fernández, both army soldiers assigned to the Morón Air Base near Seville, became Spain's first military personnel to marry under the new law. In August 2008, Doña Luisa Isabel Álvarez de Toledo, 21st Duchess of Medina Sidonia and three-time Grandee of Spain (branded the Red Duchess for her socialist activism), became the highest ranking Spanish noble to marry in an articulo mortis (deathbed) wedding to longtime companion Liliana Maria Dahlmann, now the Dowager Duchess of Medina Sidonia by right of her late wife.
A poll by the government-run Centre for Sociological Investigations (Centro de Investigaciones Sociológicas), published in April 2005, reported that 66% of Spaniards favoured legalising same-sex marriage. Another poll taken by Instituto Opina a day before the bill passed placed support of the same-sex marriage bill at 62.1% and support of adoption by same-sex couples at 49.1%. An Instituto Opina poll taken nine months after the bill passed said 61% agreed with the government's decision.
On 25 July 2007 the BBVA Foundation published their report Social portrait of Spanish people, which reported that 60% of Spain's population support same-sex marriage. This support occurs mainly among the younger population, between 15 and 34 years old (75%), people with higher education (71%), people not attached to any religion (75.5%), and those identified by left and centre-left political views (71.9%). However, only 44% of the population favor the right of adoption by homosexual couples, in contrast to 42% opposition.
A May 2013 Ipsos poll found that 76% of respondents were in favour of same-sex marriage and another 13% supported other form of recognition for same-sex couples.
According to the Ifop poll, conducted in May 2013, 71% of Spaniards supported allowing same-sex couples to marry and adopt children.
- First same-sex marriage in Spain
- LGBT rights by country
- LGBT rights in Spain
- Recognition of same-sex unions in Europe
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- Nash, Elizabeth (2008-02-05). "Red Duchess a rebel to the last as she snubs family and leaves all to wife". The Independent. Retrieved 2009-12-12.
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- (Spanish) Un 44% de los españoles acepta la adopción por parejas del mismo sexo frente a un 42% que se opone
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- (French) Enquête sur la droitisation des opinions publiques européennes
|Wikimedia Commons has media related to Same-sex marriage in Spain.|
- Same-Sex Marriage: A Selective Bibliography of the Legal Literature (includes Spanish case)