After set-backs, first same-sex marriage in Argentina

By Tracey Begley

Courtesy of Troy Page.

The legal and political debate in Argentina over same-sex marriage reflects the tension between two differing opinions: that the ability to marry is a fundamental right which may be achieved through judicial interpretation, and that the legality of gay marriage should be left to elected officials to decide. In December 2009, Judge Gabriela Seijas from the Buenos Aires State Court declared same-sex marriage legal within the city limits, permitting the same-sex couple that brought the case to marry in Buenos Aires. Judge Seijas declared that defining marriage as an agreement between a “man and a woman” was unconstitutional; her judgment reaffirmed the opinion that every person has the right to get married, regardless of sexual orientation.

Article 172 of the national civil code refers to a marriage as an agreement between a “man and a woman.” Therefore, opponents of same-sex marriage argue that it was prohibited by the national civil code. Judge Seijas, however, reasoned that nowhere in the Argentine constitution is marriage defined as a contract between a man and a woman. Judge Seija looked to the Buenos Aires constitution for support: Article 11 declares that no one shall be discriminated against based on gender. Therefore, she reasoned, a prohibition on marriage based on gender was unconstitutional.

Judge Gomez Alsina of the National Court, however, disagreed with Judge Seijas’s interpretation, opining that determinations on the legality of marriage should be left to the legislature. Shortly after Seijas issued her judgment, lawyers from Buenos Aires filed an action with Judge Alsina, requesting an injunction that would prevent gay marriage in Buenos Aires. Judge Alsina claims she issued the injunction as a precautionary measure because Judge Seija did not have the authority as a member of the judiciary to change the national civil code.

Judge Alsina’s reasoning for granting the injunction is based in the idea of the separation of powers between the judiciary and the legislature. Judge Alsina argued that the ability to alter the civil code is a legislative authority held only by the national Congress. Judge Seija noted in her opinion, however, that she did not make a decision that affected that nation of Argentina, but only the people of Buenos Aires, where her court has jurisdiction.

Some activists also refute Judge Alsina’s authority to overrule Judge Seijas’s decision, arguing that Judge Alsina is a national judge, while Judge Seijas is a trial-level judge for the autonomous city of Buenos Aires, the capital of Argentina. National and state courts have different jurisdictions, which sometimes overlap, but national-level courts are normally more restricted in their exercise of jurisdiction than state courts. This case was originally filed in state court, therefore, the lawyers who requested the injunction appealed to the national court and Judge Alsina granted jurisdiction. Judge Alsina may have granted jurisdiction because she wanted to make her voice heard on the issue of gay marriage, or she may have done so because the issue of gay marriage relates to the national constitution, and national-level courts have the authority to hear cases concerning issues based in the constitution. For the moment, the injunction stands, and the same-sex couple that brought the case have been forced to wed in another state.

The differing judgments of Judges Seijas and Alsina raise the larger issue of whether marriage is a fundamental right or one that Congress has the power to determine. Seijas’s interpretation of the civil code upheld the belief that every person has the right and ability to marry whomever he/she would like to marry. Alsina’s decision raises issues as to the true motivations of the lawyers who filed the action for injunction and Alsina herself. Although Alsina’s argument lies in the fundamental doctrine of the separation of powers, the primary result of her ruling was to ban same-sex marriage. Alsina masked her disapproval of same-sex marriage through a separate argument. The two judge’s opinions reflect a larger societal disagreement, and Argentina faces difficult political and ideological issues with which the country will doubtless continue to wrestle.