Written by Dinka Benítez Piraino
On May 26, 2020, same-sex civil marriage went into effect in Costa Rica, becoming the first country in Central America and one of 29 countries in the world to recognize it. In contrast, almost 30 countries around the world punish lesbianism and homosexuality with prison terms and even death. In Latin America and the Caribbean, only 7 out of 33 countries recognize same-sex marriage: Argentina (2010), Uruguay (2013), Brazil (2013), Colombia (2016), Ecuador (2019) and some states in Mexico[1].
There is no doubt that same-sex marriage in Costa Rica is a historic event and a cause for celebration throughout Latin America.
Costa Rica, and particularly its Constitutional Division of the Supreme Court, has implemented significant changes related to family issues and sexual and reproductive rights within the framework of inter-American human rights law. For example, in Artavia Murillo (2012)[2]the Inter-American Court of Human Rights condemned Costa Rica after it banned the practice of IVF in 2000. This verdict sparked an unprecedented debate that resulted in the re-legalization of IVF. a victory for the recognition of personal autonomy, sexual and reproductive health and the right to enjoy the benefits of scientific progress. This case demonstrated Costa Rica’s commitment to international human rights law over the years. At the same time, it demonstrated the efforts made by the State to recognize and fulfill its human rights obligations.
Likewise, the recognition of same-sex civil marriage in Costa Rica did not happen overnight. The story began when the Costa Rican government asked the Inter-American Court of Human Rights, on May 18, 2016, about its interpretation of the recognition of the rights of same-sex couples, which resulted in Advisory Opinion No. 24 on Gender Identity, Equality and the Prohibition of Discrimination of Same-Sexuples18. The Inter-American Court stated, under the American Convention on Human Rights, that states have an obligation to recognize family ties and protect them[3]. As a result, the Constitutional Division of Costa Rica’s Supreme Court in 2018 declared articles of its legal system that maintained different treatment between heterosexual and same-sex couples to be unconstitutional. Further, the Supreme Court urged the Legislative Assembly to allow these changes in its legal framework to take effect after eighteen months[4]. Eighteen months later, on May 26, 2020, same-sex marriage became legal in Costa Rica. On the very same day, the first same-sex marriage was celebrated[5]. In Costa Rica it was not necessary to create a new same-sex marriage law. The Supreme Court did the job by revising its own legal framework.
Unlike other countries, the Constitutional Chamber of Costa Rica has recognized that the advisory opinions of the Inter-American Court are binding on states. For all that matters here, Costa Rica recognized the validity of Advisory Opinion No.
In contrast, Chile’s Constitutional Court has just rejected a claim of inapplicability (unconstitutionality) very similar to the one that allowed same-sex marriage in Costa Rica[6]. Inapplicability is an excellent tool used to review the constitutionality of a specific principle (article), related to a specific case, in the Chilean legal system. In Costa Rica, the same type of legal action exists, but this function rests with the Supreme Court and has a general impact as opposed to just affecting specific cases. But the arguments put forward by critics in Costa Rica against same-sex marriage were the same ones given in Chile: a lack of legislative debate and an alleged threat to children’s rights. The difference is that Costa Rica was able to overcome its critics, while Chile, unfortunately, succumbed to them.
Although Chile has legally recognized the existence of same-sex couples under the civil union contract, it has not yet included parental rights (the legal relationship between parent and child). In particular, the case rejected by the Constitutional Court of Chile concerned a lesbian couple who married in Spain and only one of the women was legally recognized as the mother of their child. For this reason, the Constitutional Court was asked to review the articles on civil marriage. In this case, the applicants argued that the inability to legally marry in Chile resulted in a direct impact on their child’s rights, in addition to discrimination based on sexual orientation.
Despite the fact that Chile was the first state to be convicted by the Inter-American Court in a sexual orientation case in 2012[7]the Constitutional Court of Chile held in the case that it was not possible to speak of discrimination. The different treatment, the Constitutional Court said, does not lie in one’s sexual orientation, but in the institution of marriage in Chile, as it is the union between a man and a woman. Thus, in the absurd opinion of the Constitutional Court of Chile, a non-heterosexual person could marry, as long as it is with a person of the opposite sex. Even worse, the Constitutional Court of Chile referred to the supposed risks if they declared a different type of marriage acceptable. Chile’s Constitutional Court said accepting the applicants’ arguments for accepting same-sex marriage would lead to “unbearable extremes” they believe are happening in other countries and drew comparisons to polygamous marriages in Muslim countries, child marriages in African countries, arranged marriages in Japan and mass marriages in the Moon Sect in South Korea.[8].
Shame.
Marriage is a matter of human rights, but also an institution under suspicion
Gay marriage in Costa Rica is a human rights issue because it means recognizing the existence of different families. Same-sex marriage is not only an issue that concerns adults but also children, as they are born into these different families. Decades ago, legal systems in some Latin American countries used to maintain differences between children based on whether they were born to married or unmarried parents. In Chile, discrimination was abolished in 1999. However, new legislation recognizing all types of families reopens arbitrary differences between children, but now discrimination depends on whether they were born into a homosexual or heterosexual family.
Furthermore, same-sex marriage is a human rights issue because families are still the primary institution of states’ public policies. For example, public food distribution under current pandemic conditions is intended to help families as a whole, not each individual member. Therefore, as long as the family remains the fundamental core of our societies, the least we should expect is legal recognition of those who make up these diverse families. However, the romance behind marriage, however sincere the love, hides a simple ancestral contract. A contract that serves to obtain social benefits, a contract that serves the right to health, to get tax exemptions, to inherit, to own. But the dignity of people, and especially the dignity of women and those who identify outside the gender binary, cannot depend on their marital status or family heritage. That is why I say that marriage is and should be an institution under suspicion.
In any case, congratulations to Costa Rica. Although international standards related to family issues and sexual and reproductive rights do not yet permeate the legal systems of all countries, the commitment and perseverance of the people of Costa Rica is an example for all of Latin America and the Caribbean. Thanks to its people, dignity will become a habit. Meanwhile, in Chile, we await the next referendum on a new Constitution due in October. The people of Chile deserve better.
[2] Inter-American Court of Human Rights, Artavia Murillo v. Costa Rica. Decision of November 28, 2012. http://www.corteidh.or.cr/docs/casos/articulos/seriec_257_esp.pdf
[3] Inter-American Court of Human Rights, Advisory Opinion No. 191.
[4] Supreme Court of Costa Rica, Resolution Number 12782 – 18 Constitutional Chamber, issued on August 8, 2018,
[6] https://www.tribunalconstitucional.cl/wp-content/uploads/COMUNICADO-DE-PRENSA_7774_28_05_2020.pdf
[7] Inter-American Court of Human Rights, Atala Riffo and Girls v. Chile. Decision of February 24, 2012.
[8] Chile, Constitutional Court, decision of 4 June 2020, Rol 7774-2019, section 23.
Please note that blog posts are not peer-reviewed and do not necessarily reflect the views of SRHM as an organization.
