Same-sex marriage in Costa Rica

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Legal status of same-sex unions
Marriage
Performed
Recognized
  1. Performed in 13 states and Mexico City, and recognized by all states in such cases
  2. Performed in the Netherlands proper, and partially recognized by Aruba, Curaçao and Sint Maarten in such cases
  3. Neither performed nor recognized in Niue, Tokelau or the Cook Islands
  4. Neither performed nor recognized in Northern Ireland, the dependency of Sark or the Caribbean territories
  5. Neither performed nor recognized in American Samoa or some tribal jurisdictions
  6. Limited to residency rights for foreign spouses of citizens (EU) or legal residents (China)
  7. Registration open in all counties except Hualien, Penghu, Taitung and Yunlin

* Not yet in effect, but automatic deadline set by judicial body for same-sex marriage to become legal

LGBT portal

Same-sex marriage is currently not recognized in Costa Rica. However, on August 8, 2018, the Supreme Court declared the sections of the Family Code prohibiting same-sex marriage to be unconstitutional, and gave the Legislative Assembly 18 months to reform the law accordingly, otherwise the ban would be abolished automatically. The ruling was published in the judicial bulletin on November 26, 2018, meaning that same-sex marriage will become legal on May 26, 2020, at the latest. This followed a ruling issued in January 2018 by the Inter-American Court of Human Rights stating that American Convention on Human Rights signatory countries are required to allow same-sex marriage.

Civil unions[edit]

The legal recognition of same-sex unions has been debated periodically since 2007, with the debate resurfacing in May 2009 and causing significant controversy due to the strong influence of the Catholic Church in the nation.[1]

In 2008, a group opposed to same-sex unions asked the Costa Rican electoral authority, the Tribunal Supremo de Elecciones (TSE), to hold a referendum on the subject, an action opposed by most organizations supporting same-sex civil unions in the country. On October 1, 2008, the TSE authorized the group to start collecting the signatures required by law to trigger the referendum (5% of registered voters). By July 2010, the required signatures had been collected and the TSE started the process to hold the referendum on December 5, 2010. In the meantime, several organizations and individuals, including the Ombudsman Office of Costa Rica, asked the Supreme Court to consider the legality of the proposed referendum. On August 10, 2010, the Supreme Court declared such a referendum unconstitutional. The court concluded that same-sex couples constituted a disadvantaged minority group subject to discrimination, and that allowing a referendum regarding their rights would potentially enable the non-LGBT majority to limit their rights, and thus increase the discrimination. It then fell to Costa Rica's Congress to legislate for same-sex unions.[2]

On July 2, 2013, the Legislative Assembly unanimously passed a measure that could legalize same-sex civil unions as part of a larger bill amending the Law of Young People (Spanish: Ley General de la Persona Joven). The passing of the bill was widely acknowledged to be a mistake by legislators unaware of its implications; those voting for the bill included legislators vocally opposed to LGBT rights. The mistake, however, did not impact the legality of the bill. The bill changed article 22 of the Law of Young People to recognize: "The right to recognition without discrimination contrary to human dignity, social and economic effects of domestic partnerships that constitute publicly, notoriously unique and stable, with legal capacity for marriage for more than three years." The bill also changed the country's Family Code to allow couples living together for three years or more to be recognized as having a common-law marriage, which would grant them the benefits of legal partners such as alimony.[3] The final approved version of the bill did not define marriage as being between people of the opposite sex.[4] On July 4, 2013, President Laura Chinchilla signed the bill into law. A statement from the Minister of Communication said that it was not up to her to veto that bill and that the responsibility for interpreting it lay with legislators and judges.[5]

In July 2013, a same-sex couple filed an appeal with the Supreme Court asking for their union to be recognized under the new law. LGBT rights activists reacting to the law said it needed to survive a constitutional challenge in court.[6][7] Some constitutional lawyers stated that same-sex couples would "still lack legal capacity" to formalize their unions, despite the passage of the bill.[8]

On December 3, 2014, Vice President Ana Helena Chacón Echeverría confirmed that four same-sex union proposals would be debated starting in January 2015. President Luis Guillermo Solís said on November 27 that he supported a coexistence initiative to grant couples economic rights, but not any of the civil union proposals equivalent to marriage.[9] In mid-March 2015, two government proposals were submitted and examined. On August 12, 2015, the Government sent a partnership proposal to the Legislative Assembly extraordinary sessions, seeking to make Article 242 of the Family Code's definition of cohabitation gender-neutral.[10]

In June 2015, a Costa Rican judge granted a common-law marriage to a same-sex couple, Gerald Castro and Cristian Zamora, basing his ruling on the July 2013 legislation.[11] Conservative groups subsequently filed a suit accusing the judge of breach of duty. A criminal court cleared the judge in April 2018.[12]

In early July 2018, six deputies from the Social Christian Unity Party introduced a civil union bill to the Legislative Assembly, as the party opposes the legalization of same-sex marriage. Under the proposed bill, same-sex couples would be granted almost all of the rights of marriage.[13]

Same-sex marriage[edit]

History[edit]

On May 23, 2006, the Supreme Court ruled against same-sex couples seeking to be legally married. In a 5-2 decision, the court ruled that it was not required by the country's Constitution to recognize same-sex marriage in family law.[14]

On March 19, 2015, a bill to legalize same-sex marriage was introduced to the Legislative Assembly by Deputy Ligia Elena Fallas Rodríguez from the Broad Front.[15] On December 10, 2015, the organization Front for Equal Rights (Frente Por los Derechos Igualitarios) and a group of deputies from the Citizens' Action Party, the National Liberation Party and the Broad Front presented another bill.[16][17][18] The bill was submitted to the Assembly on January 28, 2016.[19] In December 2016, the Citizens' Action Party (PAC) announced its support for same-sex marriage. Its Equal Marriage project calls for same-sex couples to receive the same rights as opposite-sex couples, including adoption.[20] A few days later, President Luis Guillermo Solís, a member of PAC, announced his personal opposition to same-sex marriage.[21] He did, however, restate his commitment to approving a law of coexistence for same-sex couples.

Costa Rica saw its first same-sex marriage in 2015. The couple, Laura Florez-Estrada and Jasmine Elizondo, were able to marry due to a clerical error where one of the partners was accidentally recorded as the opposite gender. In February 2019, the Government dropped a court case against the couple.[22]

In April 2017, a Costa Rican citizen and a Mexican citizen who had previously wed in Mexico asked the Costa Rican Embassy in Mexico City to recognize their same-sex marriage. However, the Costa Rican Civil Registry denied their request, based on the country's same-sex marriage ban. In May, the couple appealed the Civil Registry's decision, but it rejected their request again in June. The couple appealed to the Supreme Electoral Court, and said that, should it rule against them, they would appeal to the Supreme Court and then to the Inter-American Court of Human Rights.[23][24]

In November 2017, Costa Rica hosted a conference on the marital rights of same-sex couples across Latin America. Speaking at the conference, Vice President Ana Helena Chacón Echeverría, one of Costa Rica's two vice presidents, announced her support for same-sex marriage.[25]

2018 Inter-American Court of Human Rights ruling[edit]

On January 9, 2018, the Inter-American Court of Human Rights (IACHR) ruled that countries signatory to the American Convention on Human Rights are required to allow same-sex couples to marry.[26][27] The ruling states that:

The State must recognize and guarantee all rights derived from a family bond between persons of the same sex in accordance with the provisions of Articles 11.2 and 17.1 of the American Convention. (...) in accordance with articles 1.1, 2, 11.2, 17 and 24 of the American Convention, it is necessary to guarantee access to all the existing figures in domestic legal systems, including the right to marry. (..) To ensure the protection of all the rights of families formed by same-sex couples, without discrimination with respect to those that are constituted by heterosexual couples.

The ruling also set binding precedent for 15 other American countries, who have all ratified the Convention and accepted the Court's jurisdiction, namely Barbados, Bolivia, Chile, the Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru and Suriname.

The Costa Rican Government announced that it would abide by the ruling.[28][29] Vice President Ana Helena Chacón Echeverría said that the ruling would be adopted in "its totality". The Foreign Ministry notified the Judiciary, the Supreme Electoral Court (responsible for the Civil Registry) and the Legislative Assembly about the ruling on January 12.[30][31]

The first same-sex couple was scheduled to get married on January 20. However, on January 18, the Superior Council of Notaries stated that notaries cannot perform same-sex marriages until provisions in the Family Code prohibiting such marriages are changed by the Parliament or struck down by the Supreme Court.[32][33] This put the Council at odds with the Government and the IACHR, which stated in its ruling that legislative change was not necessary.[34] The couple announced their intention to challenge the Council's decision in the Constitutional Chamber of the Supreme Court (Sala IV).[35] Minister of Justice Marco Feoli reiterated the Government's position that the IACHR ruling was fully binding on Costa Rica.[36]

Reaction[edit]

Costa Rica has long been committed to the Inter-American juridical system, and the Constitution of Costa Rica specifically states that the country's international agreements take precedence over national laws. The Costa Rican Supreme Court has repeatedly ruled that the IACHR is the definitive interpreter of the American Convention on Human Rights, and that all of the Court's rulings are fully binding on Costa Rica.[37]

LGBT activists and human rights groups celebrated the IACHR decision, while the Catholic Church and evangelical groups condemned it.[38] The ruling met with outrage among conservative and evangelical groups, who said that the Court had disrespected Costa Rica's laws. Some opponents of the ruling called for the country to leave the jurisdiction of the Court, which would require a constitutional amendment.[39] Constitutional amendments require a two-thirds majority in the Legislative Assembly.[40]

Several supporters of the ruling have argued that local legislation is not required to legalise same-sex marriage, citing a 2016 court decision regarding the legalisation of in vitro fertilisation (IVF), in which the IACHR ruled that presidential and/or governmental decrees are sufficient to implement its decisions.[41][42]

Most of the candidates in the February 2018 presidential elections announced their support for or willingness to respect the IACHR ruling, with the exception of Fabricio Alvarado, Stephanie Campos and Mario Rendondo, all of them from minor Christian parties. Other candidates had already been in favor of same-sex marriage before the IACHR ruling, including former Labor and Social Security Minister Carlos Alvarado Quesada from the governing Citizens' Action Party (PAC), left-leaning Deputy Edgardo Araya and labor union activist Jhon Vega. The rest of the candidates signaled that they were personally opposed to same-sex marriage but willing to accept the Court's ruling. Fabricio Alvarado, an evangelist of the National Restoration Party, claimed that the Court had "violated" Costa Rica's sovereignty. In the days following the IACHR ruling, Alvarado began polling in first place with 17%, up from 3-5% prior to the ruling.[43] Support for Carlos Alvarado, a pro-same-sex marriage candidate, also increased considerably.[44]

In the current Legislative Assembly, eight of the ten PAC deputies and José María Villalta, the sole Broad Front deputy, support same-sex marriage.[45][46] The remaining two PAC deputies and all the deputies of the National Liberation Party (PLN), Social Christian Unity Party (PUSC), Social Christian Republican Party (PRSC) and National Integration Party (PIN) expressed their support for same-sex civil partnerships only.[45] Of the 14 deputies of the ultra-conservative National Restoration, 12 did not answer and two expressed their opposition to same-sex marriage without clarifying if they would support same-sex civil partnerships.[45][47]

In the April 1, 2018 presidential runoff between Carlos Alvarado and Fabricio Alvarado, dubbed by some media outlets as a "de facto referendum on same-sex marriage", same-sex marriage supporter Carlos Alvarado won with over 60% of the vote.[48][49] Following his win, he said: "I will lead a government for all [men] and all [women]. That shelters all people, without any distinction."

2018 Supreme Court ruling[edit]

The Supreme Court of Justice of Costa Rica (Spanish: Corte Suprema de Justicia de Costa Rica) issued a ruling in August 2018 in favor of same-sex marriage.

On January 24, the Center for Justice and International Law (Cejil) asked the Constitutional Chamber of the Supreme Court (Sala IV) to rule on the issue of same-sex marriage quickly.[50] On January 25, the Superior Council of Notaries clarified its position, stating that notaries could not perform same-sex marriages until the Civil Registry issued guidelines on the registration of such marriages.[51] Despite this, one same-sex couple successfully married before a notary in February 2018.[52] The notary in question faced an investigation, but rejected any wrongdoing, stating that he respected international law and took a stand against discrimination when marrying the couple.[53] The marriage was later annulled.[54] An additional eight same-sex couples had applied for marriage certificates by May 2018.[55]

On February 22, 2018, La Nación reported that the Sala IV was reviewing six lawsuits seeking the legalisation of same-sex marriage in the country.[56] On March 9, 2018, the Attorney General recommended to the court to abide by the IACHR ruling and declare article 14 of the Family Code, which prohibits same-sex marriage, unconstitutional.[57][58] On May 14, 2018, the Supreme Electoral Court stated that same-sex couples could not get married unless Article 14 of the Family Code was either repealed by the Legislative Assembly or struck down by the Supreme Court.[59][60][61]

On July 18, it was announced that the Sala IV would rule on two lawsuits from 2013 and 2015 challenging the constitutionality of Articles 14 and 242 of the Family Code, as well as Article 4 of the 2013 Law of Young People, in the first half of August 2018.[62][63] On August 3, the Commissioner for LGBTI Population Affairs of the Presidency of the Republic, Luis Salazar, presented a letter asking the Sala IV to legalize same-sex marriage, signed by 182 personalities, including former presidents Luis Guillermo Solís, Laura Chinchilla, Óscar Arias and Abel Pacheco.[64][65][66] On August 8, 2018, the Sala IV declared all three of the articles in question unconstitutional, and gave the Legislative Assembly 18 months (from the publication of the ruling) to amend the laws accordingly. If the Assembly does not comply, both same-sex marriage and same-sex de facto unions will automatically become legal when the deadline passes.[67][68] The ruling was welcomed by President Carlos Alvarado Quesada, but several lawmakers expressed doubts that the Legislative Assembly would amend the law before the deadline.[69][70]

On November 14, the Court released the full written ruling,[71][72][73][74] which was published in the judicial bulletin on November 26, 2018.[75][76]

In anticipation of the ruling taking effect, new guidelines giving same-sex couples access to housing allowance if they have been living together for three years was published in the official gazette La Gaceta in February 2019. The guidelines were adopted in compliance with the 2018 IACHR ruling.[77]

In February 2019, a group of conservative deputies introduced a constitutional amendment to ban same-sex marriage. According to the deputies, the initiative is supported by 150,000 citizens. The bill seeks to amend Article 52 of the Constitution from the current text: "Marriage is the essential basis of the family and rests on the equal rights of the spouses" to "Marriage is the union of a man and a woman, rests on the equal rights of the spouses, and is the essential basis of the family." The launch of the initiative was attended by the New Republic Party (PNR) bloc, Independent Deputy Érick Rodríguez Steller, Patricia Villegas Álvarez from the National Integration Party (PIN), Shirley Díaz Mejías from the Social Christian Unity Party (PUSC), and a faction of the Social Christian Republican Party (PRSC).[78] Constitutional amendments require a two-thirds majority in the Legislative Assembly. Some experts have stated that the initiative has a low chance of success, as it requires at least 38 votes, and the heads of the main party groups including PLN and PAC, the two biggest, have already announced that they will not support the measure.[79]

Public opinion[edit]

A poll conducted between January 4 and 10, 2012, by La Nación showed that 55% of Costa Ricans supported the statement "same-sex couples should have the same rights as heterosexual couples", while 41% were opposed. Support was higher among people aged 18–34, at 60%.[80]

According to a Pew Research Center survey, conducted between November 9 and December 19, 2013, 29% of Costa Ricans supported same-sex marriage, 61% were opposed.[81][82]

A poll carried out in August 2016 by the Centro de Investigación y Estudios Políticos (CIEP) indicated that 49% of Costa Ricans opposed the legal recognition of same-sex unions, while 45% supported it. 6% were unsure.[83]

The 2017 AmericasBarometer showed that 35% of Costa Ricans supported same-sex marriage.[84]

A poll published in January 2018 by CIEP suggested that 35% of the Costa Rican population supported same-sex marriage, with 59% opposed.[85][86]

See also[edit]

References[edit]

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  5. ^ (in Spanish) Presidenta ya firmó ley que podría legalizar derechos a homosexuales
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  15. ^ (in Spanish) Proyecto de ley N.°19.508
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  85. ^ With pro-gay marriage presidential win, Costa Rica halted religious conservatism
  86. ^ (in Spanish) Mayoría de ticos se oponen a matrimonio homosexual y legalización de marihuana