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Ecuador Takes a Major Constitutional Step Towards Gay Marriage
(Blogmensgo, gay blog of 19 June 2019) The Constitutional Court of Ecuador, by decision of 12 June 2019 and by a narrow majority (5 votes to 4), allowed two gay couples to marry. Since the decisions of the supreme court in Ecuador are legally binding, legalization of gay marriage is only a formality. Ecuador has offered a registered partnership for same-sex couples only since 2015.
Below is a report (good sound in Spanish, video rather bad) by Teleamazonas Ecuador shortly after the announcement in favor of gay marriage in Ecuador…
So the nine judges had to decide on these two cases. The facts of the case were identical in both cases.
In case 11-18-CN, the five judges who supported the legalization of homosexual marriage (Agustín Grijalva, Daniela Salazar, Karla Andrade, Ramiro Ávila, Alí Lozada) relied on Ecuadorian and international law. The judges considered that Article 67 of the Constitution provides for equality between persons without any form of discrimination. However, the constitution in force since 2008 stipulates that marriage means the union of man and woman. In addition, IACHR Opinion OC-17/24 advocates human equality under Articles 11 and 24 of the American Convention on Human Rights. However, in Ecuador this is only a recommendation because it is regarded as a mere opinion.
On the other hand, the four judges voting against the legalization of gay marriage acknowledged that only a constitutional reform initiated by the National Assembly should have the power to legalize same-sex marriage.
In case 10-18-CN, the same five judges called on the National Assembly to legislate in favor of marriage for all and to amend two articles of the law (Article 81 of the Civil Code and Article 52 of the Civil Status Code) which they considered unconstitutional.
Below is an analysis of this case from the newspaper TeleSur.
A historical judgment
The decision of 12 June 2019 does not specify how long the legislator has time to regulate existing laws and regulations on marriage and the gender identity of spouses, in other words, when the two gay couples are allowed to marry.
The Mediator of the Republic welcomed this decision, which will finally enable the “weakest and most discriminated groups” to assert their legitimate rights.
One of the two applicants, Efrain Soria, asked gays and lesbians to come out of the hidden and live the happiness of equal treatment.
The entire LGBT community welcomed this court ruling as historic. In front of the Constitutional Court, a crowd of people with rainbow flags and slogans had been waiting and then expressed their joy after the judgment was published. Among the crowd, there were another ten same-sex couples defended by the Pakta Foundation and its President Christian Paula, who had contributed to the preparation of the legal acts and the legal aspects of this double action.
For an in-depth legal analysis of this case and its implications, here is a detailed opinion by lawyer Byron López Castillo – known for his fight for secularism – in a long interview with a journalist of RTS La Noticia.
Still a long way to go
Ecuador is the fifth South American country after Argentina, Brazil, Uruguay and Colombia to recognize same-sex marriage. Mexico and Costa Rica have already allowed homosexual marriages as well.
But there is still a lot to do. People still have to get used to the legality of same-sex marriage in Ecuador. Registered partnerships may then also be opened to heterosexual couples in order to avoid further discrimination.
As the 2008 Constitution also prohibits adoption by same-sex couples, it may require further litigation to remedy this injustice.