Freyre Alejandro v. GCBA, Administrative Tribunal of First Instance No. 15 of the Federal Capital, Buenos Aires, Argentina (10 November 2009)
After the plaintiffs’ application for a marriage licence was denied, they filed an amparo action before the Administrative Tribunal, challenging the constitutionality of Articles 172 and 188 of the City of Buenos Aires’ Civil Code.
The plaintiffs, two men, applied for a marriage licence but had their application rejected by the Registry on the grounds that they were both men. Articles 172 and 188 of the Civil Code, which regulated the issue of marriage licences, required that spouses be a man and a woman.
Whether the articles of the Civil Code that denied same-sex couples the right to marry were discriminatory and therefore unconstitutional.
Civil Code of Argentina, Articles 172, 176, and 188.
Constitution of Argentina, Articles 2 (adoption of the Roman Catholic Apostolic religion as the religion of the government), 5, 14 (freedom of religion), 16 (equality before the law), 19 (right to privacy), 33, and 75(22) (incorporation of international treaties into the text of the constitution).
Constitution of the City of Buenos Aires, Articles 11 (equality before the law, right to be different, and prohibition of discriminatory treatment based on sexual orientation), and 16 (amparo action).
City of Buenos Aires, Law No. 1.004 (civil unions).
City of Buenos Aires, Law No. 23.515 (marriage).
National Law No. 23.592 (prohibition of discrimination).
Decision 314:1531, Supreme Court of Argentina, 1991 (votes of Petracci and Fayt); Decision 329:5266, Supreme Court of Argentina, 2006 (presumption of unconstitutionality and suspect categories).
Decision 327:5118, Supreme Court of Argentina, 2004; Decision 329:2986, Supreme Court of Argentina, 2006; Decision Salgado, Graciela B. c/GCBA, Supreme Court of Argentina, 2001; Decision Asociación por los Derechos Civiles (ADC) c/GCBA, Supreme Court of Argentina, 2005 (strict scrutiny test and discriminatory impact).
The Court noted that Holland, Belgium, Spain, Canada, South Africa, Sweden, and Norway had enacted laws that recognised marriage for same-sex couples, and that several other countries recognised same-sex civil unions.
International Covenant on Civil and Political Rights, Articles 23 (right to marry) and 26 (right to equal protection of the law).
International Covenant on Economic, Social, and Cultural Rights, Articles 2.2 (non-discrimination) and 10 (protection of the family).
American Convention of Human Rights, Article 17 (protection of the family and right to marry).
Reasoning of the Court
The plaintiffs argued that the Constitution of Argentina, international treaties and relevant legislation did not restrict marriage to the union of a man and a woman. Only Article 188 of the Civil Code made an explicit reference to the opposite sex of partners in marriage.
The Government argued that the petition was ill-founded, that amparo was not the appropriate mechanism, that the local authorities had no jurisdiction to decide the case, and that any modification of the Civil Code should be done by the legislature and not the judiciary.
Equal protection and the right to be different
The Court first asked whether it was discriminatory to grant the right to marry to heterosexual couples only. Article 16 of the Constitution of Argentina guaranteed equality before the law. This protection was not limited to individuals equally situated under the law. It did not mean “equality among equals”, as the Government supposed, because, if this were the case, government would be permitted to decide what constituted equality and could circumvent the notion of discrimination. On the contrary, Argentina’s Constitution protected the right to be different and granted equal protection under the law to individuals in their diversity.
Moreover, the principle of equality needed to evolve with societal changes and to be interpreted broadly. This was demonstrated by the inclusion of sexual orientation as a prohibited ground of discrimination in the Constitution of the City of Buenos Aires (Article 11). As a result, the challenged provisions directly contradicted the Constitution.
Argentina’s Constitution required the Government to eliminate barriers that impaired equal protection. Laws that deprived individuals of legal benefits because of their personal differences were examples of such barriers. A law that excluded individuals from the legal benefits of marriage because of their sexual orientation was a barrier to the equal protection of rights. The judicial system had the constitutional power, and the duty, to strike down such a law.
Suspect categories and discriminatory impact
The Court noted that, in cases of alleged discrimination, the burden of proof lay on the defendant and courts applied a strict scrutiny test. National jurisprudence indicated that strict scrutiny was even more important in “categorias sospechosas” (suspect classification) cases, where discrimination was considered particularly likely. Because this case concerned sexual orientation, a prohibited ground of discrimination under the Constitution of the City of Buenos Aires, it was evidently a suspect classification case.
Under the strict scrutiny test, the defendant had to demonstrate that the law advanced a substantial (not merely convenient) government goal; that the distinction was clearly related to the achievement of that goal; and that it promoted the goal effectively and that no less discriminatory alternative was available.
To prove discrimination, furthermore, it was not necessary to show discriminatory intent against a vulnerable group. On the contrary, a suspect category was subject to strict scrutiny if it had the effect of excluding protected groups from any legal benefits, regardless of the intent of legislators when they drafted the law in question.
The Court affirmed that laws should not classify people by sexual orientation except to provide benefits which these vulnerable groups had been deprived of in the past. Among other things, “sexually diverse” individuals had been deprived of the right to marry.
Marriage and religion
The Court noted that changes in the institution of marriage had occurred throughout history. It affirmed that the institution lacked innate characteristics, and that it reflected historical and cultural influences.
The Court observed that same-sex could not be opposed on the grounds that it offended the moral and religious convictions of a part of the population. Argentina was a secular State and therefore the civil sphere was distinct and independent from the religious one. This distinction protected the constitutional rights of autonomy of conscience, individual freedom, and freedom of religion. These rights were fundamental principles of a constitutional democracy. Although permitting same-sex couples to marry went against very deeply ingrained religious beliefs in Argentinean society, it was not precluded by the Constitution.
The civil institution of marriage was also independent from religious institutions. Article 2 of Argentina’s Constitution (adoption of the Catholic Apostolic Roman religion by the federal government) did not require that the government’s view of marriage be identical with that of Catholics.
Discrimination based on sexual orientation
The Court then addressed directly the question of whether the prohibition of same-sex marriage amounted to discrimination based on sexual orientation. The Court noted that, if examined literally, Articles 172 and 188 of the Civil Code explicitly contradicted the constitutional rules that prohibited discrimination based on sexual orientation. The Court also referred to the provisions on non-discrimination and the right to marry of several international human rights treaties, noting that, under Article 75(22) of Argentina’s Constitution, these provisions acquired constitutional standing in domestic law.
The Court observed that people who did not conform to socially accepted sexual conduct were victims of legal and social discrimination and could not fully enjoy their fundamental rights. Homophobia and discrimination on the basis of sexual orientation could be compared to racism: both built on the construction of an “other” who was rejected and accused of threatening the integrity of society. The Court observed that the constitutional regime of the city of Buenos Aires recognised no good or bad form of sexual orientation. “[S]exual orientation was simply out of the moral sphere.”
State practice provided a further argument in favour of changing the law. During the previous 20 years, the Court noted, many countries had modified their laws to allow gay couples to marry or form civil unions. In some States (for instance in the United States), decisions of the judiciary had set in motion the reform process.
Civil Unions vs. Marriage
The defendant argued that, under Law 1.004 of the City of Buenos Aires, all couples, including same-sex couples, had the option to form a civil union. In response, the Court noted that, although civil unions provided legal benefits similar to those of marriage, same-sex couples were still denied access to the right to marry. This regime only prolonged and reinforced a pattern of discrimination. Because this exclusion denied same-sex couples access to the symbolic value of marriage, the maintenance of separate legal forms reinforced the stigmatisation, disapproval, and non-recognition of diverse sexual orientations.
The Constitution of Argentina and the Constitution of the City of Buenos Aires guaranteed all people the right to equal protection under the law. Articles 172 and 188 of the Civil Code of the City of Buenos Aires denied the plaintiffs the right to marry based on their sexual orientation. Because the law afforded the privilege of marriage to heterosexual couples and denied it to homosexual couples, the law violated same-sex couples’ right to equal protection of the law. It also violated their rights to individual freedom, full development of their personality, and their effective participation in the political, cultural, economic, and social life of the community.
Article 11 of the Constitution of the City of Buenos Aires empowered the government, including the judiciary, to remove any obstacles to equality. The Court therefore declared Articles 172 and 188 of the Civil Code unconstitutional and ordered the defendant (the Mayor of the City of Buenos Aires) to issue a decree authorising the plaintiffs’ wedding.
The Mayor of Buenos Aires followed the Court’s decision, and authorised the plaintiffs’ wedding. However, two different courts intervened, revoking the decision and ordering the authorities of Buenos Aires not to officiate the marriage. Shortly thereafter, the Governor of Tierra Del Fuego Province issued a decree ordering the civil registry office to perform and register their marriage. The couple eventually married on 28 December 2009, but the marriage was declared null and void by the Children and Family Court of Ushuaia, the provincial capital of Tierra Del Fuego. After the plaintiffs’ marriage took place, several other same-sex couples were joined in legal matrimony in Argentina and almost all these marriages were also declared null and void by other courts. The Supreme Court heard argument on several cases concerning the right of same-sex couples to marry. As these cases were pending, the legislature adopted a new law legalising same-sex marriage on 14 July 2010.
Freyre Alejandro v. GCBA, Administrative Tribunal of First Instance No. 15 of the Federal Capital, Buenos Aires, Argentina – Spanish (full text of judgment in Spanish, PDF)