Colombia same-sex marriage case rejected

Unfortunately, our "friends of the court intervention" did not persuade the
Constitutional Court of Colombia to decide in favour of equal access to
marriage.

The majority (5 of 9 judges) ruled on 11 November 2010 that they could not
decide the case because it had not been properly argued?! The majority
cited Article 42 of the Constitution of Colombia (see below). I did not
know about this provision, which does not exist in Argentina or Italy, and
does not help.

The Constitutional Court cited and misinterpreted Schalk & Kopf v. Austria
(ECtHR, 24 June 2010), which stands for the proposition that a
constitutional text referring to "men and women", in connection with the
right to marry, CAN be re-interpreted as gender-neutral (the Colombian
provision refers to "a man and a woman", but does not say that this must be
the only form of marriage in Colombia).

Lack of "European consensus", not the text of Article 12, is the only
obstacle to the European Court of Human Rights' finding a violation in a
future case. In Colombia, lack of "international consensus" should not be an
obstacle, given that the Constitutional Court interprets the Constitution
only for Colombia, and already has a large body of favourable decisions on
lesbian and gay human rights issues.

The Articles

ARTICLE 13. Everyone ... enjoy the same rights, freedom and opportunities without discrimination based on sex, race, national or family origin, language, religion, political or philosophical. ...

ARTICLE 42. The family is the fundamental unit of society. It constitutes natural or legal ties, by the free decision of a man and a woman to marry ...

More Information

In spanish:
www.corteconstitucional.gov.co
www.colombiadiversa.org