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Supreme Court of El Salvador Invalidates Constitutional Amendment Aiming to Ban Same-sex Marriage
(Blogmensgo, gay blog of February 10, 2018) In a ruling issued on January 31st, the Supreme Court of the Central American country El Salvador banned the legislative assembly (i.e. the parliament of the country) from confirming a constitutional amendment aiming to allow marriage to heterosexual couples exclusively, to disallow recognition of same-sex marriages contracted abroad, to bar transsexual people from marrying and to prohibit child adoption by same-sex couples. The judges justify the ruling by formal errors and the unconstitutional nature of individual parts of the reform project. It is not known at present whether or not this court order relates to the recent decision of the Inter-American Court of Human Rights.
On April 16, 2015 and by expedited proceedings, the legislative assembly of El Salvador had voted to amend articles 32, 33 and 34 of the constitution relating to same-sex marriage.
The Supreme Court has now ruled by unanimous decision that the legislature had disregarded the procedures provided for in the Constitution and very clearly exceeded its powers: On the one hand, the expedited procedure was not at all appropriate here, and on the other hand, the legislature has no right to dictate the procedure for revising the constitution. Most importantly, the one-chamber parliament did not inform the population about the procedure at all and therefore did not allow any political debate whatsoever, which is inadmissible on such an important issue.
In addition, amendments to the constitution can only be made by a two-thirds majority (that is, at least 56 out of 84 votes) and over two different legislative periods, but only 47 representatives had voted in favor of the three constitutional amendments in 2015. There had already been a similar case in 2009, when the assembly had not confirmed a constitutional amendment aimed at banning homosexual marriage in 2006.
On the basis of these formal errors, the Court now clearly prohibited parliament from confirming these amendments based on a vote in 2015.