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How Costa Rica is battling for gay rights

Costa Rica's gay rights activists have sought a different path than those in the US.

Costa Rica gay couple
A gay couple kisses at 'Bar Oh!!!' during an event called 'Time of Revolution', in San Jose, Costa Rica, on May 15, 2010. (Yuri Cortez/AFP/Getty Images)

SAN JOSE, Costa RicaSome 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.”