SAN JOSE, Costa Rica — Some are celebrating, some cursing, a new federal court ruling to restore gay marriage in California — even though same-sex weddings are on hold pending an appeal process.
Meanwhile, in Costa Rica, the country's high court ensured that the battle over gay rights won’t be fought through the ballot box.
A public referendum on recognizing same-sex civil unions was set for December. Proponents had submitted enough signatures — at least 5 percent of the electorate — to hold the vote.
But on Aug. 10, the Supreme Court canceled the referendum.
So why is the Costa Rican lesbian, gay, bisexual and transsexual (LGBT) community ecstatic?
Because those opposed to recognizing same-sex weddings were almost certain to win a referendum as opinion polls in this predominantly Catholic country indicate that the vast majority see gay rights as contravening traditional family values.
Civil rights advocates are pleased as well. They feared the conservative-backed plebiscite would amount to a discriminatory populist rule over what they see as a core civil rights issue and end the chance for same-sex couples seeking civil unions. (The debate here centers on civil unions. There is little support for legalizing gay marriage, as the institution of marriage is still widely regarded as a sacramental bond reserved only for a man and a woman.)
The Supreme Court seems to have sided with the civil rights activists. In its ruling, the court said, “The majority [of magistrates] considered that the rights of minorities borne out by struggles against majorities cannot be subjected to a referendum process where the majority rules."
The court continued: "People in same-sex relationships are a disadvantaged group and the object of discrimination who need support from public powers to recognize their constitutional or sub-constitutional rights. In summary, [the court] considered that subjecting the rights of a minority to the decision of the majority deepens and aggravates discrimination against [the minority.]"
The Costa Rican ruling made waves that traveled north, particularly among groups involved in the highly contentious U.S. dispute over same-sex marriage.
"We were so surprised but also extremely gratified by the [Costa Rican] court's holdings," said Shannon Minter, legal director for the U.S. nonprofit public interest law firm, National Center for Lesbian Rights. The center has fought hard against California's Proposition 8 that upheld the clause "only marriage between a man and a woman is valid or recognized in California."
On Costa Rica's ruling, Minter said, "That's a great example for our courts here in the U.S."
In 1993 the Supreme Court of Hawaii ruled that the denial of marriage licenses to same-sex couples amounted to unconstitutional discrimination. Fearing that the case would lead to legalization of same-sex marriages, conservatives started campaigning for a federal law.
In 1996, the U.S. Congress passed the "Defense of Marriage Act," which denied benefits to same-sex couples and defined marriage as the union between a man and a woman. Forty-one states currently have Defense of Marriage laws, most of which have passed in the last decade, according to the National Conference of State Legislatures.
As Americans take on the issue state by state amid conflicting rulings by local and federal courts, Costa Rica's Diversity Movement is pressing for change nationwide. Movement leader Abelardo Araya says it's more appropriate to fight for gay rights in congress than in court or at the ballot box. Perhaps it’s a good strategy: legal action to overturn the hetero-only marriage rule have not won, and a poll in La Nacion newspaper after the recent court ruling said less than a quarter of respondents would have voted in favor of civil unions; 71 percent would have voted “no.”
Politicians in Costa Rica have tended to avoid the issue, often considered taboo to a population which, by some estimates, is three-quarters Roman Catholic and 15 percent other Christian denominations.
Not until former President Oscar Arias was nearing retirement from politics did he reveal his conviction that civil unions "should have legal recognition." In April, one month before leaving office, Arias took on the Church, saying, "One doesn't choose one's sexual orientation. It's given by nature or God."
However, if not by referendum, how far do the LGBTs intend to get in Costa Rica’s Legislative Assembly? The movement found friends in the legislature in 2006, when lawmakers proposed a bill to recognize the rights of same-sex civil unions. But that initiative never went far.
Even if the bill finds fresh support in the Legislative Assembly, it needs to pass through two votes there and then would go to President Laura Chinchilla for final approval. That could take months.
And in spite of her predecessor Arias’ remarks, Chinchilla, the country’s first female in the top office, has mostly sidestepped the issue since taking office in May. Following the court ruling, she gave a tepid endorsement of rights for all. “Though I may advocate to maintain the figure of matrimony the way our society constructed it, I understand that the access to rights, civil and patrimonial, is for all, no matter religion, sex or sexual preference,” Chinchilla said, according to newswire EFE.
Opposition undoubtedly will be fierce. In March, when it appeared the initiative could gain momentum, the "Observatorio Ciudadano," or Citizen Observatory, a traditional family values advocacy group, scolded politicians for abandoning Costa Rican fundamentals.
In a newspaper ad, the Observatorio said, "Legally recognizing homosexual unions would turn them into a model for society. This is contrary to the fundamental values we Costa Ricans believe in ... and that are enshrined in articles 51 and 52 of the Constitution."
Abelardo Araya, leader of Costa Rica's Diversity Movement, is heartened by what he’s seen happen in other Latin American countries — Argentina and Mexico City have legalized gay marriage — and California. “I think this international context was beneficial for the magistrates to rule favorably for our rights,” he said. “And we’re very positive that the Latin American region is advancing in this way.”
Among U.S. rights advocates, Minter said, spirits have soared after Judge Vaughn R. Walker’s ruling. “The level of anticipation and excitement in the LGBT community is the highest I have ever seen it. It is extremely intense,” he said.
And the lessons of struggles abroad are raising hopes even higher. “From the U.S. it certainly looks like a very strong emerging trend [in Latin America] and very positive and inspiring for us here in the States,” Minter said.