Gay Marriage as a Constitutional Right

In a world moving at breakneck speed and in a country like ours, where one can die of anything but boredom, we are frequently faced with so many temporal issues that sometimes we are blinded by the brightness of urgency and those of us who create opinions end up forgetting what is important. For example, remember that in the same week in which Benedict XVI announced his resignation from the papacy, Rafael Correa was re-elected for the second time as president of the Republic. Much can be said about the one and the other, but for now, we’ll leave Ratzinger and the president in peace and talk about a fundamental issue regarding respect for human rights. I am referring to gay marriage and to the constitutional discussion surrounding it.

A group traditionally segregated, persecuted and even criminalized in Ecuador until just 15 years ago is one that has chosen a different sexual orientation. The decriminalization of homosexuality by the then Constitutional Court decision in 1997 and the incorporation of standards in the 1998 Constitution, as in Article 23.3 which, in addition to the right to equality, established the prohibition of discrimination because of sexual orientation as well as the principle of marriage based on the free consent of the parties involved, without specifying their condition as man and woman, led us to foresee better times regarding diversity rights. However, in one of the many paradoxes marking the 2008 Constitution and for purely political reasons, the definition of marriage was reversed in Article 67 to the definition of marriage as the union of a man and a woman, something not done even in the Constitution of 1929, which for the first time included marriage in the constitutional standard. This reversal with respect to human rights will certainly counter the protective spirit that inspired the Montecristi Treaty as well as the trends that presently mark constitutional law.

The constitutionalism of the U.S., Europe and various Latin American countries has wagered, without doubt, although with much opposition from the more traditional sectors, in favor of the defense of the right to marry without discrimination on the basis of sexual orientation, a position that has been championed by the more progressive sectors. In Ecuador the picture is not as flattering, taking into account not only the regressive constitutional standard to which I referred earlier, but also the discourse of political actors. Listening to the wildly popular President Correa’s use of the words “fag” or “badea” as synonyms for coward or pusillanimous during a citizen broadcast, or worse yet, watching incredulously how in the 21st century, Pastor Nelson Zavala made homophobia his campaign speech while opposition on the left kept total silence on the subject, is disheartening to say the least. All this while a world-class leader like the president of the United States is asking the Supreme Court of that country to repeal the law that excludes the possibility of gay marriage leads us to conclude that it is not only necessary to give more visibility to the subject in Ecuador, but also to define positions.

Why is gay marriage perfectly suited to the constitutional framework and respect for human rights? In the first place, it is necessary to redefine marriage, which has traditionally been regarded as an institution whereas the vast majority of constitutional doctrine now treats it as a right — a right to contract marriage under conditions of freedom and, above all, equality. Thus heterosexuality as a defining element of the institution of marriage loses ground to the constitutional requirement of equality and non-discrimination where the right to marry should be exercised. One cannot deny a person or couple the exercise of a right because of their sexual orientation without violating all prohibitions contained in the Constitution, international treaties and conventions on human rights protection. In addition, one has to take into account the rights to human dignity, good living or the free development of personality, among others that would be denied to those affected by maintaining the ban on same-sex marriage. The Spanish Constitutional Court understood this and rejected the unconstitutional claim that the ruling Popular Party had submitted regarding the law allowing gay marriage. Hopefully our Constitutional Court understands it, as this should be resolved by said court through a systematic interpretation of the constitutional provision and not by an exercise of direct democracy, as it pertains to what Luigi Ferrajoli calls “the realm of the unspeakable.” The judges will have their say.