Monday, September 14, 2020

Worldwide Marriage Equality Watch List

Amsterdam City Hall, April 1, 2001

This is a companion article to my article Marriage Equality Around the World. Here we track the nations and other jurisdictions most likely to see marriage equality next, as well as places where marriage equality has become a high-profile topic. Last update: Sept. 14, 2020.

Andorra

Andorra is planning to erase the distinction between civil unions for same-sex couples and casaments (weddings) for opposite-sex couples and allow both to have casaments, and to define matrimoni (marriage) as a religious thing that happens in church. The vote in the General Council (parliament) is expected this year.

Bermuda

In June 2018, the Bermuda government became the first in the world to end marriage equality, which had been brought in by a court, replacing it with domestic partnerships. The repeal lasted until November 2018, when a court ruling took effect striking down the portion of the domestic-partnership law that re-banned marriage equality. The government appealed that ruling to the British overseas territory's court of final appeal, the Judicial Committee of the United Kingdom Privy Council, which will hear the case Feb. 3-4, 2021. Same-sex couples can continue to marry during the appeal process.

The Privy Council ruling may have some effect in, or be precedential for, multiple British overseas territories and Commonwealth countries that use the Privy Council as their final court and don't have marriage equality. Those overseas territories are Anguilla, British Virgin Islands, Cayman Islands, Montserrat, and Turks and Caicos Islands. And those Commonwealth countries are Antigua and Barbuda, Bahamas, Brunei, Grenada, Jamaica, Kiribati, Mauritius, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Trinidad and Tobago, and Tuvalu.

There was only one other repeal of marriage equality in history: California voters ended marriage equality via a ballot initiative (Proposition 8) in 2008. A court ruling overturning the voters' decision took effect in 2013 when the U.S. Supreme Court declined to hear an appeal by the initiative's sponsors. Voters in the U.S. state of Maine blocked a marriage-equality law from coming into force in 2009, then reversed themselves and allowed marriage equality in 2012. Voters in Slovenia blocked a marriage-equality law from coming into force in 2015. A court ruling in the British overseas territory Cayman Islands allowed marriage equality for 13 days in 2019 before a higher court issued a stay. No same-sex couple married during that time.

Bolivia

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 haven't 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.

Cayman Islands

The Cayman Islands Grand Court legalized marriage equality on March 29, 2019, striking down the British overseas territory's ban. On April 10, 2019, the day the first marriage was to take place, the Court of Appeal issued a stay of the Grand Court ruling, blocking marriage equality until the government's appeal of the ruling ran its course. On Nov. 7, 2019, the Court of Appeal overturned the lower-court ruling but said the Legislative Assembly had to "expeditiously" provide the plaintiffs with a legal status equivalent to marriage. Nearly nine months later, on July 29, 2020, the Legislative Assembly voted down a domestic-partnership bill designed to do that. On Sept. 4, 2020, the United Kingdom's governor in the Caymans force-enacted the partnership bill.

Meanwhile, the plaintiffs in the marriage case have taken the case to the court of final appeal, the Judicial Committee of the Privy Council in London, where a ruling is expected in early 2021, along with a ruling in Bermuda's marriage case. Of the 25 British jurisdictions scattered around the globe, only five now don't have marriage equality: Anguilla, British Virgin Islands, Cayman Islands, Montserrat, and Turks and Caicos Islands. (Marriage equality remains in force in Bermuda during the appeal of its case.)

Chile

Since President Sebastián Piñera took office in March 2018, Chile's government has resisted bringing in marriage equality and in October 2018, Piñera told TV viewers, "I believe that marriage, as we conceive it and by its nature, is between a man and a woman."

Under a settlement agreement Chile's previous government entered into at the Inter-American Commission on Human Rights in 2016, the government is required to promote marriage equality until it is achieved. But in September 2019, the new government declared it intended only to "monitor" a marriage-equality bill introduced in 2017 by the previous administration. In January 2020, that bill finally saw initial approval in the Senate, which will vote again after a committee analyzes the measure in detail.

Chile is also among the nations instructed to bring in marriage equality by the Inter-American Court of Human Rights' November 2017 marriage-equality ruling.

In June 2019, Chile's Supreme Court upheld a ruling that said the Civil Registry did not have to process a same-sex couple's marriage application. The couple then took their case to the Inter-American Commission, where it is pending. In April 2020, the Constitutional Court ruled 5-4 against a same-sex couple who sued the Civil Registry for recording their Spanish marriage as a civil union rather than a marriage and against overturning the nation's ban on marriage equality.

China

China wrote a new civil code in 2019 and, during public comment periods, LGBTs submitted at least tens of thousands of recommendations that the code bring in marriage equality — a project coordinated by LGBT Rights Advocacy China via Weibo and WeChat, giant Chinese social-media apps. While the lobbying did not succeed, it demonstrated LGBTs' ability to create huge discussions on social media and advanced self-empowerment. The related Weibo hashtag had 200 million views before it was deleted. Ultimately, there is a decent chance the government will decide not to fight the tide and begin accommodating LGBT citizens' push for equality, but it could view the community's capacity for collective action as problematic and make efforts to curb it, said Darius Longarino, a senior fellow at Yale Law School's Paul Tsai China Center.

Cuba

In July 2018, the National Assembly unanimously passed the first draft of a new constitution containing marriage equality. A public consultation followed, ending in November. In December, the National Assembly reported that the consultation found that Cubans opposed putting marriage equality in the constitution, and the language was removed before the document was sent to a voter referendum. Instead, the assembly said, the matter would be dealt with in a new family code, which itself would go to a public consultation and referendum. In December 2019, the justice minister said the new family code will be presented to the National Assembly for analysis and subsequent approval in March 2021.

Curaçao

In September 2018, 17 years after the dawn of marriage equality in the Netherlands, activists in Curaçao, a Dutch constituent country in the Caribbean Sea, wrote a marriage-equality bill that was introduced into Parliament several months later by two MPs from the governing parties. The initiative was unveiled at a Curaçao Pride event and dubbed "the first marriage equality bill of the Caribbean to be drawn up by our own people." Dutch Caribbean overseas municipalities Bonaire, Saba and Sint Eustatius have marriage equality, while Caribbean constituent countries Aruba, Curaçao and Sint Maarten do not, though they partially recognize Dutch marriages from elsewhere.

Czech Republic

In June 2018, the Czech Republic government threw its support behind a pending bill to modify the Civil Code to bring in marriage equality, which a December 2019 poll found is supported by 67% of Czech people. The Czech Republic would be the first former Eastern Bloc nation to let same-sex couples marry.

El Salvador

There are multiple marriage-equality lawsuits before the Constitutional Chamber of the Supreme Court of Justice. In January 2020, Justice Aldo Cáder said the court planned to rule before April 2020.

Guatemala

An anti-marriage-equality bill cleared two of three readings in the unicameral Congress and remains pending. Even though marriage is already defined in law as between a man and a woman, Bill 5272, Law for Protection of Life and Family, explicitly bans marriage for same-sex couples — contravening the November 2017 marriage-equality ruling by the Inter-American Court of Human Rights, which is binding on Guatemala. Should the bill pass, activists say they would sue in the Constitutional Court and, if they were to lose there, in the Inter-American system.

In 2018, then-President Jimmy Morales said [5:54 mark in video]: "I remind the people of Guatemala that their institutions and their officials, according to Article 156 of the Political Constitution of the Republic, are not obligated to follow illegal orders. ... Our government and Guatemala believe in the family based in the marriage of man and woman." Current President Alejandro Giammattei, who took office in January 2020, also opposes marriage equality.

The bill's page at CongressActivists' analysisAmnesty InternationalHuman Rights Watch

Honduras

In May 2018, the Supreme Court of Justice accepted a lawsuit seeking to enforce the November 2017 Inter-American Court of Human Rights ruling that instructed 20 Americas nations to bring in marriage equality and modern gender-identity laws. The lawsuit aims to strike down an article of the Constitution that bans marriage equality and recognition of same-sex couples' foreign marriages and civil unions. It also targets a Family Code article that extends marriage rights to opposite-sex de facto unions but not same-sex unions, and the Law on the National Registry of Persons, which effectively prevents transgender people from changing their name.

In October 2018, Honduran President Juan Orlando Hernández told reporters at a press conference: "Personally as a Christian I am against marriage of persons of the same sex; obviously, it is the judiciary that, according to Honduran law, has to rule on it. [Regardless of sexual preferences] people should be treated with dignity, no matter what their inclination. People should be treated with dignity and this issue is very important."

In November 2018, the Supreme Court dismissed a second marriage-equality lawsuit, an action of unconstitutionality filed by activist groups, saying the plaintiffs failed to demonstrate "their direct, personal and legitimate interest" in the matter and made technical errors in their filing. The original case, filed by activist Indyra María Mendoza Aguilar, remains pending and in February 2019, local media said the court had accepted a third case filed by activists.

Hong Kong

In October 2019, the Court of First Instance of the High Court of Hong Kong ruled against a lesbian who sued for access to marriage, alleging that her constitutional rights to privacy and equality were being violated. The court said the word "marriage" in Hong Kong law refers to heterosexual marriage and the case did not present "sufficiently strong or compelling" evidence for ruling otherwise. It added that legislators should deal with recognizing same-sex relationships. In August 2019, single-issue activist group Hong Kong Marriage Equality launched.

India

After a constitution bench of the Supreme Court of India unanimously legalized gay sex in September 2018, decriminalizing 18% of LGBT people on the planet, activists added marriage equality to their agenda and, in January 2020, a gay couple filed suit in the High Court of the state of Kerala arguing that prohibiting same-sex couples from marrying violates multiple provisions of India's constitution. In September 2020, a second suit was filed in the Delhi High Court. State high court rulings in India generally have national effect unless another high court has ruled the opposite way.

Jamaica

In July 2019, a legal case was launched at the Inter-American Commission on Human Rights seeking to bring marriage equality to Jamaica. It argues that Jamaica's constitution is in violation of the American Convention on Human Rights, which the nation signed 41 years ago.

Japan

Thirteen same-sex couples filed marriage-equality lawsuits nationwide on Feb. 14, 2019 (Valentine's Day), and a marriage equality bill was introduced in the legislature, the National Diet, in June 2019.

Mexico

Mexico can only get marriage equality state by state. Eighteen of the 31 states and the federal capital Mexico City have gotten there, leaving 13 states to go. I have a separate article with the details here.

Panama

Lawyer Iván Chanis Barahona, head of Panama's marriage-equality group, La Fundación Iguales Panamá, says the November 2017 Inter-American Court of Human Rights marriage-equality ruling is "totally binding" on Panama. "Case closed." A Panama Supreme Court of Justice draft opinion rejecting marriage equality that had been circulating at the court was withdrawn in February 2018 because of the Inter-American Court ruling. In January 2018, Panamanian Vice President Isabel De Saint Malo said the Inter-American court ruling is indeed binding ("vinculante") on Panama.

In October 2019, the National Assembly passed a series of constitutional revisions that included a ban on marriage equality. Days of protests by students, LGBTs and others ensued and, on Nov. 8, Panamanian President Laurentino Cortizo said he will work to delete the ban before the revisions are finalized and sent to a voter referendum.

Paraguay

In the wake of the November 2017 marriage-equality ruling by the Inter-American Court of Human Rights, activist group SomosGay announced two new lawsuits at the nation's Supreme Court of Justice. As a first step, the suits seek recognition of two marriages of same-sex couples who married abroad.

Peru

In the wake of the Inter-American Court of Human Rights' November 2017 marriage-equality ruling, the president of the Supreme Court of Justice, Duberlí Rodríguez, said, "Peru is part of the Inter-American system and the organism that defends and protects these rights is called the Inter-American Court of Human Rights and ... if the court has taken a decision, I believe that all the parties are called to respect that decision."

In March 2018, a court ruling that had forced the National Registry to register veteran activist Óscar Ugarteche's Mexican marriage to his husband was overturned on a technicality related to the timing of the filing of his lawsuit. He appealed to the Constitutional Court, which heard the case in June 2018 and has missed the legal deadline for issuing a ruling. It is the court's first case related to marriage equality. In April 2019, the 11th Constitutional Court of the Superior Court of Lima ordered the National Registry to register the marriage of a Peruvian same-sex couple who married in 2016 in Miami. In August 2019, the Sixth Constitutional Court of the Superior Court of Lima ordered the National Registry to register the marriage of a Peruvian same-sex couple who married in 2015 in New York.

A marriage-equality bill was introduced in Congress in 2017 and is awaiting action by the Justice Committee.

Philippines

In September 2019, the Supreme Court unanimously dismissed a marriage-equality case it had heard in June 2018. While acknowledging that the Constitution "does not define or restrict marriage on the basis of sex," the justices said the plaintiff lacked standing, violated the principle of hierarchy of courts, and failed to raise a justiciable controversy.

Romania

An attempt to obstruct marriage equality by rewriting the definition of "family" in the constitution failed in October 2018 when an inadequate percentage of voters showed up to vote in a nationwide referendum. Thirty percent of all voters needed to cast a ballot for the referendum result to be valid, but only 20.41 percent did. LGBT leaders and others had called on voters to boycott the referendum. In September 2018, Romania's Constitutional Court ruled that same-sex couples must have the same "legal and juridical recognition of their rights and obligations" as opposite-sex couples.

South Korea

In November 2019, LGBTs filed 1,056 complaints at the National Human Rights Commission of Korea demanding marriage equality. Gagoonet, the Korean Network for Partnership and Marriage Rights of LGBT, said the mass complaints target the president, prime minister, heads of ministries and local governments, and the National Assembly chair. "Korean same-sex couples are not guaranteed the rights of marriage and family life, which are basic rights guaranteed by the Constitution of Korea," Gagoonet said. "Because of the lack of recognition, same-sex couples in Korea suffer from an infringement of economic and social rights, including social security, access to healthcare and housing, and workplace benefits."

Switzerland

Switzerland's National Council passed marriage equality in June 2020 by a vote of 132 to 52 with 13 abstentions. The bill now needs to clear the other house, the Council of States. The only nations in Western Europe without marriage equality are Andorra, Italy, Liechtenstein, Monaco, San Marino, Switzerland and Vatican City.

Thailand

A marriage-equality bill was introduced in parliament in June 2020 by the Move Forward Party, the second-largest opposition party in the lower house. A civil-partnership bill was approved by the cabinet and introduced in parliament in July 2020. It appears to include most of the rights of marriage, including inheritance and adoption rights, but not the right to access a partner's work-based health coverage or pension. In December 2019, Thailand's Constitutional Court rejected a marriage-equality case on a technicality, saying it should have been filed in administrative court.

Venezuela

Two marriage-equality lawsuits have long been at the final stage in the Constitutional Chamber of the Supreme Tribunal of Justice, according to Venezuela Igualitaria. One lawsuit targets a Civil Code article that says, "Marriage cannot be contracted except between one man and one woman." The other lawsuit alleges a "legislative omission" resulting from the opposition National Assembly's failure to take up the Equal Civil Marriage Bill. In September 2018, the president of the officialist National Constituent Assembly's Constitution Committee said a new constitution being drafted likely will include marriage equality.