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7/13 open thread

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  • 1. VIRick  |  July 13, 2020 at 3:04 pm

    Bolivia: Constitutional Court Rules in Favor of Same-Sex Unions in Accord with CIDH

    In a stunning decision that had not been fully anticipated, but one that follows behind the previous rulings from Ecuador and Costa Rica, while jumping well ahead of Chile, Panamá, and Perú, Bolivia is now the third member state in which its Constitutional Tribunal has issued a ruling in accordance with the binding CIDH marriage equality ruling, OC 24/17.

    Per Rex Wockner:

    Today, 13 July 2020, the Constitutional Court of Bolivia ruled against the Civil Registry of Bolivia for refusing to record a same-sex union, and has ordered it to re-issue its determination in accord with the CIDH (IACHR) marriage equality decision, emphasizing that Bolivia's international human rights accords take precedence over Bolivia's own constitution.

    Sucre, lunes 13 de julio del 2020

    La Sala Constitucional Segunda del Tribunal de Justicia de La Paz anuló una resolución administrativa del Servicio de Registro Cívico (Serecí) de 2019 que había negado el derecho de dos personas del mismo sexo a la unión libre, una opción que tienen las personas heterosexuales. Dos homosexuales, residentes en La Paz, que conviven desde hace 10 años, impugnaron la decisión del Serecí y recurrieron a la justicia constitucional. El fallo abre las puertas para que las personas del mismo sexo obtengan el derecho a la unión libre.

    Los dos vocales de la Sala Constitucional Segunda consideraron que la resolución administrativa del director nacional de Serecí, Diego Tejerina, era lesiva de los derechos humanos de los interesados, según el abogado de la defensa, Guido Ibargüen. En consecuencia, acogiendo todos los argumentos de la pareja, los dos vocales decidieron dejar la determinación del Serecí sin efecto legal, ordenando a Tejerina emitir una nueva resolución en el marco del control de convencionalidad, empleando como parámetro la Convención Americana y la Opinión Consultiva, OC 24/2017, de la CIDH. La Sala Constitucional le dio al Serecí el plazo de 10 días hábiles para volver a pronunciarse tomando en cuenta las normas internacionales.

    En Bolivia, la unión civil es una forma jurídica de constituir una familia reconocida y protegida por el Estado, que tiene los mismos efectos jurídicos que el matrimonio civil.
    https://correodelsur.com/sociedad/20200713_fallo-

    The Second Constitutional Chamber of the Court of Justice of La Paz annulled an administrative resolution of the Civil Registry Service (Serecí) of 2019 that had denied the right of a same-sex couple to a free union, an option that heterosexual couples have. Two gay men, resident in La Paz, who have lived together for 10 years, contested the Serecí decision by resorting to constitutional justice. The ruling opens the door for same-sex couples to obtain the right to a free union.

    The two members of the Second Constitutional Chamber determined that the administrative resolution of the national director of Serecí, Diego Tejerina, was detrimental to the human rights of the interested parties, according to defense attorney Guido Ibargüen. Consequently, accepting all the arguments of the couple, the two members decided to leave Serecí's determination without legal effect, ordering Tejerina to issue a new resolution within the framework of conventionality, employing as a parameter the American Convention and the Advisory Opinion, OC 24/2017, of the IACHR. The Constitutional Chamber gave Serecí a period of 10 working days to pronounce again, taking into account international standards.

    In Bolivia, civil union is a legal form of constituting a family recognized and protected by the State, one which has the same legal effects as civil marriage.

  • 2. VIRick  |  July 13, 2020 at 4:23 pm

    Rex Wockner's "Worldwide Marriage Equality Watch List" Up-Dated to Add Bolivia

    Per Rex Wockner:

    In July 2020, the Second Constitutional Chamber of the La Paz Court of Justice annulled a 2019 decision of the Civic Registry Service (Serecí) that blocked a same-sex couple from registering their union. The court ordered Serecí to re-rule within 10 days in accord with the 2017 marriage equality ruling of the Inter-American Court of Human Rights, which is binding on Bolivia and 13 other nations that still have not brought in marriage equality.

    The Bolivian ruling emphasized that Bolivia's constitution explicitly states that when international treaties and instruments in the area of human rights have been signed, ratified, or adhered to by Bolivia, and provide human rights beyond those provided under the Bolivian constitution, the international rights take precedence. This same sort of constitutional clause led to marriage equality in Ecuador last year.
    https://wockner.blogspot.com/2018/06/worldwide-ma

    Note: Bolivia will remain on the "Watch List" until after today's Constitutional Court ruling has actually gone into effect.

    One should further note that most other Latin American constitutions contain this same proviso, one wherein which international treaty obligations, particularly in the realm of human rights, take precedence over the member state's own national constitution. In fact, if such were not the case, then the member state would not have been legally able to have signed the CIDH accord in the first instance.

  • 3. scream4ever  |  July 13, 2020 at 5:56 pm

    Russia has banned same-sex marriage in their new constitution:
    https://www.google.com/amp/s/www.nbcnews.com/news

  • 4. VIRick  |  July 13, 2020 at 7:30 pm

    "Quote of the Day" from Santa Cruz, Bolivia

    A rather breathless reaction to today's Constitutional Court ruling in favor of same-sex couples and their right to register their unions:

    Per Un Gay en Santa Cruz:

    Me emociona!

    I am excited!
    https://twitter.com/cambacurioso
    https://www.instagram.com/p/CCmkauNJEHn/?igshid=w

  • 5. arturo547  |  July 13, 2020 at 9:05 pm

    So we have to wait up to ten days for the Tribunal Electoral to rule on the issue. However, we don't know if their ruling will apply to all couples or if they Will rule on the issue of free unions ir marriage. Whatever the case, it would be the first Time that same-sex union becomes legal through an administrative court. Let's compare it to Costa Rica. Their administrative court threw the issue to the Constitutional Court saying that the marriage ban had to be struck down first.

    On the other hand, the Boliviano ruling didn't come from their "Tribunal Constitutional" but from a "Constitutional Chamber". I don't know how the judicial system in Bolivia Is. Let's wait ten days so.

  • 6. VIRick  |  July 13, 2020 at 10:44 pm

    Yes, indeed, we wait. The Constitutional Chamber has given the Civil Registry Service (Serecí) 10 working days (two weeks) to issue a new administrative resolution on the matter of registering a same-sex couple's unión libre (free union or civil union with the same legal effects as civil marriage) in accordance with the binding CIDH marriage equality ruling, OC 24/17.

    I appreciate your valued input on this subject concerning Bolivia because, like you, I do not have a direct, specific understanding of how the judicial system in Bolivia actually works. Furthermore, we were unprepared for any ruling whatsoever, because, while in process, this case had not attracted any media attention. In fact, the attorney for the same-sex couple in question continues to choose to protect his clients' identity. For now, they remain anonymous.

    In Ecuador, the Constitutional Court threw out civil unions, and ruled in favor of marriage equality, on the grounds that to do otherwise was discriminatory. In Chile, the Tribunal Constitucional ruled in the opposite direction, perversely claiming that their AUCs (civil unions) were good enough, and were not discriminatory. In the present matter in Bolivia, it would appear that the same-sex couple in question resorted to the little-used unión libre (free union or civil union with the same legal effect as civil marriage), also available to hetero couples, and specifically dodged around the word, "marriage," likely because by some legal interpretations, as in Ecuador, but now defunct there, Bolivia's Constitution allegedly contains some phrasing that seems to indicate that it bans same-sex couples from entering into marriage, notwithstanding the 22 different enumerated categories in the same constitution against which it prohibits discrimination. One of those enumerated categories is sexual orientation, while another is gender identity. As a result, I have long felt that Bolivia's constitution was in conflict with itself and was thus ripe for a constitutional challenge.

    Here is another reason why the plaintiffs in the present case may have avoided the word, "marriage." Several years ago, shortly after Bolivia's progressive, self-declaring Gender Identity Law took effect, a number of transgender women immediately changed their names and their gender marker on their national identity cards. Soon afterward, now officially recognized as women by the State, they then proceeded to marry their spouses.

    In a perverse ruling, the Tribunal Constitucional ruled against them, arguing against the transgender women of Bolivia by claiming that there was no provision in the new Gender Identity Law that automatically allowed them to marry (despite the fact that they had already done so). This matter remains pending before the CIDH.

  • 7. __M  |  July 14, 2020 at 1:03 am

    Hi Rick, thanks very much for your ever-present, great contributions!
    I agree that this case took all of us by surprise.

    I need to however point out some minor things:
    1. It was NOT Bolivia’s Constitutional Court the one that decided in favor of this same sex couple. It was a lower one, called a Tribunal Departamental de Justicia or Departmental/Regional Justice Tribunal from only 1 out of the total 9 “judicial regions” -or Circuits I believe you call them in the US?- in Bolivia).

    Less importantly,

    2. I therefore perhaps disagree with the idea that Bolivia jumped ahead of
    Chile (with civil unions already in place and, albeit terrible delayed, equal marriage at least voted on ‘in principle’, co-maternity and paternity through judicial rulings and a great gender identity law
    Perú (which, although reversed later, had at least 2 sentences in favour if same sex-marriage and has 4 cases pending before its Supreme Court) and
    Panamá (whose Supreme Court has already accepted 2 marriage cases -recognition of marriages performed abroad and their celebration- and even consolidated them in June 2017. There is also a formal opinion by the Attorney General asking them Court to legalize equal marriage).

    3. As we know, this is only about sort of civil unions and not marriage.

    Needless to say, this ruling is still great news and HUGE!

  • 8. VIRick  |  July 14, 2020 at 2:58 pm

    Understanding the Court Structure and Its Terminology in Bolivia

    Thank you so much for explaining the specific court structure and terminology in use in Bolivia, as that explanation clarifies any number of other questions and issues.

    Thus, based upon your input and on your understanding of the court terminology and court structure of Bolivia, "La Sala Constitucional Segunda del Tribunal de Justicia de La Paz," (The Second Constitutional Chamber of the Court of Justice of La Paz) is the constitutional chamber of one of the 9 judicial regions (circuits) within Bolivia. Still, regardless of level, the gist of the ruling, based upon the American Convention and the binding CIDH marriage equality ruling, states that international treaties and obligations over-ride the Bolivian Constitution itself, particularly in the realm of human rights.

    In any event, the national director of Serecí was given a period of 10 working days to pronounce again, but within the parameters established by the CIDH ruling. Presumably, he can either comply (at which point, same-sex unions will be recognized by the State), or he can appeal.

  • 9. __M  |  July 14, 2020 at 5:38 pm

    It’s very hard to debate with you Rick, I am sorry, just being honest.

    We cannot say “in any event” as if it’s a minor thing. I personally think it’s quite important to note which branch of the Judicial Power has issued/issues a relevant decision. Please keep in mind that in Latin America we do not have common law as you do in the US as per your British influence; so judges here are WAY LESS powerful than US’s ones – for the better or the worse.

    Of course, I do think that it is still great that the Bolivian judges have said international treaties trump national law and of course we can celebrate this. All I am saying is that 1. This rationale was issued by ONLY ONE “sala” or “chamber” within the LA PAZ COURT only (not the other 8 Departmental/regional courts).

    Whilst we celebrate (any rights are better than none) we need to keep in mind that the judges from said “chamber” were ambivalent (deliberately or not) in their thinking (ratio dicidendi) – they very carefully picked elements of the IACHR ruling and only used some of it. They basically said: non-discrimination yes, equality as a right itself yes, BUT no specific, clear, explicit mention as to marriage itself. This is even less logical and democratic I think. Even more, I wonder if they might actually be “masked” anti-equality judges.

    In other words: we need to see what the judges understand by the SERECI complying with their ruling – if the judges intended for IACHR ruling to be fully respected, they should not stop till SERECI provides full marriage to this couple, and nothing less than that. Now, if SERECI offer “unions” and the judges are happy with this, they would be awful hypocrites, plus all our movement could backfire since these two judges would have effectively forced the Executive branch to provide second class unions and not marriage —- what if they did indeed do this to perhaps STOP some/any officials across the country to fully moving on to marriage? There is something strange here.

    Again – I think the ruling it’s positive but let’s be clear as to what it really means.

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