Same-sex marriage in Spain

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Same-sex marriage in Spain

Same-sex marriage in Spain was legalized in 2005. In 2004, the new Socialist government, led by President José Luis Rodríguez Zapatero, began a campaign for its legalization, which would include adoption by same-sex couples.[1] 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. Same-sex marriage officially became legal in Spain on Sunday, 3 July 2005.[2]

The ratification of this law has not been devoid of conflict, despite support from 66% of Spaniards.[3] Catholic authorities in particular were adamantly opposed to it, fearing the weakening of the meaning of marriage.[4] Other associations expressed concern over the possibility of gay people adopting children.[5] 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 Constitutional Court.[6]

Approximately 4,500 same-sex couples have married in Spain during the first year of the law.[7] 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 Spanish 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.[8] At least one partner must be a Spanish citizen to marry, although two non-Spaniards may marry if they both have legal residence in Spain.

History

A celebration occurred at the Spanish Congress the day the same-sex marriage law was approved.

During the 1990s, several city councils and Autonomous Communities of Spain had open registers for civil unions that allowed benefits for unmarried couples of any sex, although their effect was mainly symbolic.[9] By then, 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.[9] Same-sex marriages were illegal in Autonomous Communities, because the Spanish Constitution gives the State sole power to legislate marriage in Spain.[9]

On 30 June 2004, Spanish minister of justice Juan Fernando López Aguilar announced that the Spanish Congress of Deputies had provisionally approved a government plan for legislation to extend the right of marriage to same-sex couples. This would fulfill a promise made by President José Luis Rodríguez Zapatero at his inauguration.[1] Minister López Aguilar also announced two propositions, introduced by the Convergència i Unió party; 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.[10]

The bill regarding same-sex marriage was approved by the Cabinet on 1 October 2004. It was submitted to Parliament on 31 December,[11] and passed by the lower house on 21 April, 2005.[12][13] However, the bill was rejected on 22 June, 2005 by the Senate, where the opposition People's Party held a plurality of the seats.[14] It returned to the lower house, which holds the power to override the Senate, and which gave final approval to the bill on 30 June, 2005 with 187 "yes" votes, 147 "no" votes, and four abstentions.

With the final approval of the law on 2 July 2005, Spain became the third country in the world to formally legalise same-sex marriages nationwide, after the Netherlands and Belgium.[15]

The first same-sex wedding took place eight days after the approval of the law. It was celebrated in the council chamber in the Madrid suburb of Tres Cantos by Carlos Baturin and Emilio Menéndez.[16] The first same-sex marriage between women took place in Barcelona, Catalonia, eleven days later.[17]

In spite of these steps toward equal treatment, there was still a legal flaw: children born within a lesbian marriage could not be legally recognized by the non-biological mother, who still had to undergo a time- and resource-consuming process of adoption.[18] This right was granted to heterosexual couples (married or not), where the male partner who was not the biological father could recognize such children without further process. On 7 November 2006, the Spanish government amended the law on assisted reproduction, allowing the non-biological mother to recognize children born within a lesbian marriage.[19]

Ratification of Law 13/2005

A diagram showing the varying regulation by country of same-sex unions throughout Europe.

The projected bill announced on June 30, 2004 by the Spanish Minister of Justice was studied by the Spanish Consejo General de Poder Judicial.[20] Although the Consejo General de Poder Judicial 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 Spanish Constitution, and that ending discrimination could be achieved through other legal means, such as a regulation of civil unions.[21]

Despite this negative report, the government presented the proposed bill to the Spanish Congress on 1 October, 2004. With the exception of the People's Party and members of Unió Democrática de Catalunya, the different parliamentary parties favoured the reform. On 21 April, 2005, the Spanish Congress approved the projected bill, with 183 "yes" and 136 "no" votes and 6 abstentions (including a member of the People's Party).[22] The bill to allow same-sex marriage in Spain was short: it added a new paragraph to article 44 of the Spanish 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.[23]

In accordance with constitutional provisions, the text approved by the Congress was then submitted to the Spanish Senate for final approval, change or veto. On 21 June, 2005 experts were called to the Senate to debate the issue. The experts' opinions were diverse; some stated that gay adoption had no effect on a child's development, except for perhaps a higher tolerance towards homosexuality.[24] However, psychiatrist Aquilino Polaino (called by the People's Party as an expert) called homosexuality a pathology and emotive disorder, expressing, among other assertions that generated debate, that "many homosexuals have rape abuse antecedents since childhood" and that homosexuals generally come from families with "hostile, alcoholic and distant" fathers and "over protective" (toward boys) and "cold" (toward girls) mothers. Prominent People's Party members later rejected Polaino's assertions.[25]

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 Unió Democrática de Catalunya, and was approved by 131 "yes" and 119 "no" votes and 2 abstentions.[26] As a result, the text was sent back to the Congress. On 30 June, 2005 it was approved by the 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.[2] The vote was held after President 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.[27] 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.[27]

When the media asked King Juan Carlos I if he would endorse the bill that was being debated in the Cortes Generales, he answered that he was the King of Spain, not of Belgium, in a veiled reference to King Baudouin I of Belgium, who refused to sign the Belgian law legalizing abortion.[28] The King of Spain gave his Royal Assent to Law 13/2005 on 1 July, 2005; the law was published in the Boletín Oficial del Estado on 2 July, 2005, and became effective on July 3, 2005.[29]

Reactions

Gay march celebrating Pride Day and legalization of same-sex marriage.

A poll by Spain's government-run Centre for Sociological Investigations (Centro de Investigaciones Sociológicas) published in April 2005 said 66% of Spaniards favoured legalising same-sex marriage.[3] 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%.[30] An Instituto Opina poll taken nine months after the bill passed said 61% agreed with the government's decision.[31]

However, the bill's passage was met with concern by Catholic authorities, including Pope John Paul II—who feared a weakening of family values—and his successor Pope Benedict XVI.[32] Cardinal Lopez Trujillo said the Church was making an urgent call for freedom of conscience for Roman 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.[32] 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 Felipe, Prince of Asturias 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 Catholic; 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).[33] A poll showed three quarters of Spaniards believe the church hierarchy is out of touch with social reality.[34] A complementary explanation might be that the Church's influence on Spaniards has declined since the death in 1975 of the dictator General Francisco Franco, whose regime was closely linked to the Church.[35] Opinion polls suggest that nearly half of Spaniards now almost never go to mass.[35]

President Zapatero responded to Catholic 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.[36]

Traditional marriage supporter showing banner 'Marriage = Man + Woman'.

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; a government delegation counted 166,000 at the same event.[37] 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.[38][39] Both marches took place in Madrid, at the time ruled by the conservative People's Party.

Spanish bishops also claimed that the government, by equalizing same-sex and opposite-sex couples, weakened the meaning of marriage, which they defined as a couple of different sexes.[4] 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.[5] Gay associations replied that adoption by same-sex couples existed de facto 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.[40] 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.[41]

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 Spanish Constitutional Court based on article 32 of Spain's constitution that contains the phrase "Men and women have the right to contract marriage with full juridical equality."[42] In August 2005, a judge from Gran Canaria refused licenses to three same-sex couples and mounted another constitutional challenge.[43] In December 2005, the Constitutional Court rejected both challenges owing to both judges' lack of standing to file them, as they were only authorised to uphold laws, not question them.[44] On 30 September 2005 the conservative People's Party decided to initiate a separate constitutional challenge, causing division within the party.[45] There is no outcome as of early 2007. 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.[46]

Residency issues

Map showing variances in laws on homosexuality

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.[47] However, on 22 July, another judge in Catalonia married a Spanish woman with 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 not allowing same-sex marriage.[48]

On 27 July, the Junta de Fiscales de Sala—a body of lawyers that advises the national attorney general'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.[49] 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.[8]

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.[50] 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, Amsterdam, Toronto, Montréal, Ottawa and Cape Town as of February 2007). In all other cases, the partners must marry in Spanish territory.[51] Two non-resident foreigners cannot marry in Spain, as at least one of the partners must be a Spanish citizen; two resident foreigners can do so.

Marriage statistics

On 4 September, 2005, the conservative newspaper La Razón published data from 273 out of 430 Offices of Civil Registry showing 24 same-sex marriages had occurred to date out of over 35,000 marriages. The paper argued that the data contradicted the justifications of the government making the law a main priority of the legislature, as well as claims from gay rights activists that the law would benefit five to ten percent of the population. On 27 December, 2005, the Spanish Minister of Justice reported that 327 same-sex marriages (among them 90 in Madrid, 63 in Valencia, 35 in Barcelona and 18 in Seville) had been registered by 5 December, 2005 in the 200 civil registries that were computerized at the time (out of a total of 437 civil registries in Spain).[52] In the rest of the country, same-sex marriage and heterosexual marriage were not differentiated in the total number of civil marriages.

In early March 2006, Pedro Zerolo, a senior government official, announced that more than 1,000 same-sex couples had married. Eight hundred marriages were recorded in the fully computerized areas (about half the country) and at least 200 were estimated in the rest of the country. Zerolo also said that one out of every ten marriages in Spain was between same-sex couples.[53] According to FELGT, about 4,500 same-sex couples married during the first year of the law, 50 adoption petitions were made, and 3 divorces were granted.[54]

See also

References

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  51. ^ Peral, María (2005-07-27). "La Fiscalía apoya el matrimonio homosexual con extranjeros aunque sus países lo prohíban". El Mundo. Retrieved 2007-01-25. {{cite news}}: Check date values in: |date= (help) Template:Es icon
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  54. ^ "UNAS 4.500 PAREJAS HOMOSEXUALES CONTRAJERON MATRIMONIO EN EL PRIMER AÑO DE VIGENCIA DE LA LEY, SEGÚN LA FELGT". Inforgay. 2006. Retrieved 2006-12-22. Template:Es icon

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Marriage

Recognized

Civil unions and
registered partnerships
Minimal recognition
See also
Notes
  1. KoN: Performed in the Netherlands proper, including the Caribbean Netherlands. Registered in Aruba, Curaçao and Sint Maarten in such cases, but the rights of marriage are not guaranteed.
  2. NZ: Neither performed nor recognized in Niue, Tokelau, or the Cook Islands.
  3. UK: Neither performed nor recognized in six British Overseas Territories.
  4. US: Neither performed nor recognized in some tribal nations. Recognized but not performed in several other tribal nations and American Samoa.
  5. Israel: Registered foreign marriages confer all marriage rights. Domestic common-law marriages confer most rights of marriage. Domestic civil marriage recognized by some cities.
  6. EU: The Coman v. Romania ruling of the European Court of Justice obliges the state to provide residency rights for the foreign spouses of EU citizens. Some member states, including Romania, do not follow the ruling.
  7. Cambodia: Recognition of a "declaration of family relationship", which may be useful in matters such as housing, but they are not legally binding.
  8. China: Guardianship agreements, conferring some limited legal benefits, including decisions about medical and personal care.
  9. HK: Inheritance, guardianship rights, and residency rights for foreign spouses of legal residents.
  10. India: Courts have recognised guru–shishya, nata pratha or maitri karar–type contractual relationships, but they are not legally binding.
  11. Japan: Some cities and prefectures issue partnership certificates, but they are not legally binding.
  12. Namibia: Marriages conducted abroad between a Namibian national and a foreign spouse recognized for residency rights.
  13. Romania: Hospital visitation rights through a "legal representative" status.
* Not yet in effect
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