Sentencia C-075/07, Constitutional Court of Colombia (7 February 2007)
Direct challenge to the constitutionality of excluding same-sex couples from the economic protections afforded under Law 54 of 1990.
Whether denying same-sex partners the same inheritance protections and rights that were granted to heterosexual civil unions violated the Preamble, Article 1, and Article 38 of the Constitution of Colombia.
Constitution of Colombia, Preamble and Articles 1 (human dignity), 38 (freedom of association), and 93 (granting international human rights treaties constitutional ranking).
Law 54 of 1990, modified by Law 979 of 2005 (defining civil unions as the permanent union between an unmarried man and woman, who have lived together for more than two years in a monogamous relationship; partners meeting the qualifications of a de facto marriage could receive marital property rights once they had signed and had notarised the appropriate forms; included rights to alimony, equal distribution of assets acquired during the relationship, inheritance, and insurance in case of death).
Sentencia C-098/96, Constitutional Court of Colombia, 1996 (holding that Constitution did not require recognition of same-sex civil unions because same-sex relationships were differently situated to opposite-sex relationships and therefore it was legitimate for the legislature to treat them differently, relying on the definition of family under Article 42 of the Constitution).
International Covenant on Civil and Political Rights, Article 26 (equality before the law).
Dudgeon v. United Kingdom, ECtHR, 1981 (finding that the sodomy laws of Northern Ireland violated the right to privacy under the European Convention).
Toonen v. Australia, United Nations Human Rights Committee, 1994 (holding that Article 26 of the ICCPR prohibits discrimination based on sex, which includes sexual orientation).
Young v. Australia, United Nations Human Rights Committee, 2003 (holding that the denial of pension benefits to same-sex couples while granting them to opposite-sex couples is discrimination in violation of the ICCPR).
Reasoning of the Court
The Court began by establishing that the case before it concerned a constitutional issue that could be reviewed despite prior decisions that denied benefits to same-sex couples. Same-sex couples were unable to marry in Colombia and Law 54 of 1990, modified by Law 979 of 2005, recognised only civil unions that consisted of heterosexual couples.
The Court noted that where a specific group, such as same-sex couples, suffered harm due to a difference in treatment, this must be justified by a reasonable and sufficient purpose. The Court was required to determine whether providing marital property rights only to opposite-sex couples was discrimination based on sexual orientation and whether it interfered with the dignity and right to freedom of association of same-sex couples. If this were the case, there could be no reasonable or sufficient justification for the discriminatory treatment.
Previous cases had held that all discriminatory treatment of same-sex persons was presumed to be unconstitutional and deserved strict scrutiny. Specifically, the Court had found that sexual diversity was connected to personal autonomy and thus protected by the Constitution. It had also noted that the Constitution valued diversity. The right to personal autonomy protected sexual diversity, and homosexuals had rights not only as individuals but also in relationships. The Court emphasised that during the preceding decade “the recognition of sexual orientation as an inadmissible reason for discrimination has become a norm”.
Next the Court addressed Law 54. The original purpose of Law 54 was to protect women from poverty and promote the family. Act 979 of 2005 extended marital property rights to unmarried couples in order to protect women who were left destitute when relationships ended or the partner died. The Court found that, in a modern world where same-sex couples were essentially the same as opposite-sex couples, it was necessary to protect partner who would be destitute.
The Court referenced international law and jurisprudence, including decisions of the United Nations Human Rights Committee. It judged that this body of law supported the idea that prohibition of discrimination based on sex included prohibition of discrimination based on sexual orientation. Therefore, differences in treatment based on sexual orientation were suspect. In the absence of a reasonable and objective justification, and where same-sex couples were denied access to specific rights granted to opposite-sex couples these differences in treatment would contravene Article 26 of the ICCPR.
The Court also considered the right to dignity under Article 1 of the Constitution. Economic considerations affected decisions to live in a partnership and the ability to live with dignity. According to the Court, dignity was promoted though protection of rights such as the rights to individual autonomy, physical integrity, and morals; and these required the support of public authorities. Autonomy, which allowed a person to choose to live in the manner best suited to him or her, was of special importance. The government and the law should protect people from suffering discrimination because of their choices, provided that they did no harm to others and were legal. The Court stated that limiting the protections afforded to people based on their sexual preference also affected their freedom to choose a life partner, and choose not only how they would live but with whom.
The Court concluded that excluding same-sex couples from civil unions violated their personal dignity. No legitimate reason existed to deny same-sex couples these rights and their exclusion was unjustified. Limiting the legal provision to heterosexual couples ran counter to “constitutional principles of respect for human dignity, the state’s duty to protect all persons equally and the fundamental right to freely develop one’s personality”. Those portions of Law 54, modified by Act 979, that excluded same-sex couples were discriminatory. The Court ordered language limiting the application of the law to opposite-sex couples should be struck out.
Four justices in the majority wrote separately to clarify that constitutional protection for same-sex civil unions did not mean that such unions were considered families under Article 42 of the Constitution.
Sentencia C-075-07, Constitutional Court of Colombia – Spanish (full text of judgment in Spanish, PDF)