SU-214/16

Marriage of same sex couples from� notaries and judges

SU-214/16  marriage of same sex couples from  notaries and judges

 

In this decision the Constitutional Court acquainted different cases in which: i) two independent claimants, both same sex couples, required by acción de tutela the protection of their rights to due process, free development of personality, legal certainty, equality and protection of family, all of them allegedly violated by the refusal of a notary to accept the marriage request filed by the couples ; ii) Two independent inquiries of annulment were elevated by Procuradores Judiciales against the rulings of judges in which were accepted the requests to celebrate same sex marriages. The Public Ministry officers alleged that those decisions violated the due process; (iii) The plaintiff requests the constitutional judge to order the Registraduría Nacional del Estado Civil (National Civil Registry) the inscription of his marriage with his same sex partner; (iv) A couple conformed by a woman and a transsexual citizen requested by this action to cease the violation of their fundamental rights to equality, due process and free development of personality, which were violated presumptively by the decision of a judge to revoke their marriage certificate.

 

This tribunal formulated a legal question common to all of these cases in this way: is the celebration of marriage contracts between same sex couples, instead of a solemn innominate contract, in pursuit of overcoming the protection deficit declared by the Court in the Decision C-577 of 2011, a violation of the article 42 of the Constitution? It was concluded that an interpretation in which the same sex couples have to celebrate a solemn contract, that doesn’t configure civil marriage, conduces to inadmissible results regarding multiple topics like: (i) unmodified civil status, (ii) unaltered state of the hereditary order (iii) impossibility to subscribe capitulations, among others. In that order of ideas, no solemn, innominate or atypical contract, can produce the same personal and patrimonial effects as the civil marriage. Consequently, this contractual institutions that intend to formalize unions between same sex couples don’t overcome the deficit of protection identified in the decision C-557 of 2011.  The Courts Plenary estimated that the civil marriage between same sex couples is a legitimate and valid way to materialize the constitutional principles and values, and a form to ensure the effectiveness of the right to conform a family and the human dignity, regardless sexual orientation or gender identity.

 

 

 

 

In this occasion, the Constitutional Court solved six accumulated “acciones de tutela” related to the celebration and registration of marriages for same sex couples by judges or public notaries, or the refusal to do so. Some of them where filled by the Ombudsman’s Office or one of its delegates, the rest of them were filled by the same sex couples.

Primarily, this Judicial Body considered that the General Ombudsman of the Nation had no legitimacy to present an “acción de tutela” orientated to prevent the celebration of a civil marriage between a same sex couple, pleading that it violated the legal order, because in matters such matters prevails the respect for the fundamental rights, the human dignity, the individual freedom and equality. For that reason, those actions were declared “improcedentes”.

Regarding the fundamental issues, the Court decided that the principles of human dignity, individual freedom and equality, implied that every human being could get married, according to his or her sexual orientation. The Court considered that celebrating a civil contract of marriage is a legitimate and valid way to materialize the constitutional principles and values and a way to ensure the effectiveness of the right to human dignity, individual freedom and equality.

The Court also considered that the innominate contracts, by means of which was pretended to solemnize and formalize the unions of same sex couples don’t overcome the protection deficit identified in the Decision C-577 of 2011. In terms of the article No. 113 of the Civil Code, the celebration of a marriage generates a series of legal effects both personal and patrimonial, those effects were not present in a civil innominate contract, situation that generated a discriminatory treatment between same sex couples and heterosexual couples.

Aiming to overcome the protection deficit identified in the Decision C-577 of 2011, guarantee the exercise of the right to contract marriage, shelter the principle of legal certainty, the Tribunal decided to extend the effects of the Decision to peers, i.e., to all same sex couples that after June the 20th of 2013: (i) had turned out to judges and notaries and had been denied the celebration of the civil marriage due to their sexual orientation (ii) had celebrated a contract to formalize and solemnize their bond, without the denomination nor legal effects of the civil marriage; (iii) had celebrated a civil marriage, but the National Civil Registry denied its inscription; and (iv) those who from now on formalize and solemnize their bond by celebrating a civil marriage. In those same terms, the Court declared that all civil marriages between same sex couples celebrated after June the 20th of 2013, have full validity as they are adjusted to the constitutional interpretation of the sentence C-577 of 2011.

For the Court , the judges who celebrated civil marriages between same sex couples, acted in the precise terms of the Political Constitution, in conformity with the constitutional principle of judicial autonomy, previewed in the article No. 229 of the Constitution and the international treaties of human rights. In that order, the Court warned the judicial authorities, the public notaries and the “registradores del Estado Civil” or those public servants that could take their places, that the decision has a binding quality, with inter pares effects, as it is exposed in the motivation of the sentence.

Finally, the Court exhorted the Adminsitrative Chamber of the Superior Council of the Judicature, the Superintendence of Notary and Registry and the National Civil Registry, to spread between judges and notaries, the present providence.

 

 

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