Same-sex marriage
Legal LGBT Activity Marriage Civil Unions Unregistered legal guardian or cohabitation (franjas: Non-binding certificates are offered) Recognition of same-sex marriages carried out in other subnational entities or other countries Limited recognition of unions in other countries No recognition Restrictions on freedom of expression and association Illegal LGBT activity Prison of iurenot implemented de facto (without arrests/detentions over the last three years) Arrests, imprisonment or illegal detention de facto Prison or death penalty of iurenot implemented de facto Death penalty (franjas: fatal cases in areas under military control or extrajudicial executions by local or national authorities)
same-sex marriage, equal marriage, gay marriage, gay marriage, marriage for all or simply marriage is a social institution of a civil or religious nature that recognizes the conjugal union arranged by two people of the same sex, to establish and maintain a community of life and interests. The legal definition and the rights and obligations generated by this institution vary between each country, since the reforms in matrimonial and family law differ around the world; thus, in a State the right to adoption may not be recognized for marriages between people of the same sex, which contrasts with the laws of some countries that allow joint adoption for unmarried couples and without discrimination based on sexual orientation.
Although same-sex unions have existed in various cultures over time, such as in Ancient Rome or the Chinese province of Fujian, the westernization of the world led to their invisibility and pathologization in the 19th and 20th centuries, resurfacing with the decriminalization of homosexuality and the sexual revolution. The first laws to recognize same-sex marriage were approved during the first decade of the 21st century and the legal instruments used, depending on the case, were legislative reforms of civil marriage regulations, court rulings based on constitutional guarantees of equality or mechanisms of citizen participation, such as popular initiatives or referendums. The first civilian government to knowingly issue a marriage license to a same-sex couple was Blue Earth County, Minnesota, United States, in 1971. Along with and, in many cases, as an alternative to the institution of marriage, Non-marriage institutions of a civil nature specific to each country and community and with different denominations, such as domestic partnerships or civil unions, each of a different nature, requirements and effects ad hoc according to the social, historical, sociological, legal and political reality of each society. These alternative provisions are considered by human rights movements to be apartheid institutions and in many cases (especially when they do not grant equal rights) are criticized for fostering discrimination and creating second-class citizens.
Until October 2022, 34 countries (Germany, Andorra, Argentina, Australia, Austria, Belgium, Brazil, Canada, Chile, Colombia, Costa Rica, Cuba, Denmark, Ecuador, Slovenia, Spain, United States, Finland, France, Ireland, Iceland, Luxembourg, Malta, Mexico, Norway, New Zealand, the Netherlands, Portugal, the United Kingdom, South Africa, Sweden, Switzerland, Taiwan, and Uruguay) allow same-sex couples to marry. The last country to legalize equal marriage was Mexico on October 26, 2022. In contrast, 35 countries and 3 subnational entities have constitutional definitions of marriage that prevent equal access to same-sex couples, most enacted in the decades as a "preventive" measure; likewise, Muslim-majority countries apply Islamic precepts in their laws by constitutional mandate, which is generally interpreted as prohibiting same-sex marriage. In six of the first group and in the majority of the second all homosexual act is criminalized.
Recognition of same-sex marriage is considered a human and civil right, as well as a political, social and religious issue of the century xxi. It is also a major target of the LGBTI rights movement. Prominent advocates of marriage equality include civil rights and human rights organizations, as well as medical and scientific communities and some friendly religious congregations that officiate at marriages or blessings of same-sex unions, while the most prominent opponents are fundamentalist religious groups and conservative politicians. Opinion polls show growing support of the population in all developed democracies and in some developing democracies.
History
The term «homosexuality» was coined by Karl-Maria Kertbeny in the 19th century, but the history of Same-sex couples, like homosexuality itself, go back to the beginning of humanity. Homosexuality is widely present in nature, including, among others, non-human primates. The oldest evidence of homosexuality in humans dates from prehistoric Italy. Likewise, there are records of same-sex unions throughout the world, and various types of unions have been identified throughout human history., ranging from unauthorized informal relationships to highly ritualized unions. In this sense, the social attitude towards same-sex couples and formal unions of same-sex couples has differed depending on the times and places—from the full acceptance and integration, passing through a neutral tolerance, up to rejection, discrimination, persecution, expulsion, criminalization or extermination. In the medical area, when the dominant social models justified pathologization, homosexuality was considered " mental disorder” by the International Classification of Diseases (ICD) of the World Health Organization between 1977 and 1990 and by the Diagnostic and Statistical Manual of Mental Disorders (DSM) of the American Psychiatric Association between 1952 and 1973, although analogous diagnoses related to "persistent and marked anxiety about one's own sexual orientation" were not abolished until 2013, when scientific advances challenged the assumption that manifestations of sexuality other than heterosexuality are pathological conditions.
Old World
Classical Europe, the Middle East and China
Same-sex unions were known in ancient Greece and Rome, ancient Mesopotamia, in some regions of ancient China such as Fujian province, and at certain times in ancient European history.
Same-sex marriage practices and rituals were better recognized in Mesopotamia than in ancient Egypt. The Almanac of Incantations, a fundamental religious text of ancient Assyria, contained prayers that equally blessed the love of a man for a woman and that of a man for another man. Likewise, there are numerous documents that attest that out of the West, many cultures, particularly African or Asian, accepted same-sex relationships and, in some cases, same-sex marriage as well.
In Guangdong province, southern China, during the Ming dynasty, women would contract with younger women in elaborate ceremonies. Men also held similar engagements. Unions would last a limited number of years, after which the older would help the younger choose a wife and create a family. This type of union was also practiced in ancient European history. An example of an equal male recognized couple in the early Zhou dynasty of China is recorded in the history of Pan Zhang and Wang Zhongxian. While the relationship was clearly approved of by the community at large and was compared to a heterosexual marriage, the couple's union did not have a religious ceremony.
Some early Western societies integrated same-sex relationships. The practice of same-sex love in ancient Greece generally took the form of pedophilia, which had a limited duration and in many cases coexisted with marriage. Documented cases in this region claim that these unions were temporary pedophilic relationships. These unions created a moral dilemma among the Greeks and were not universally accepted. On the other hand, numerous examples of same-sex unions between pairs, not ranked by age, are found in ancient Greek writings (such as the pedophilia case). Among the most famous same-sex couples in ancient Greece are Harmodius and Aristogiton, Pelopidas and Epaminondas, and Alexander and Bagoas. However, in none of these same-sex unions is the Greek word for "marriage" used., reason why some historians have considered them as almost "equivalent" to heterosexual marriages; meanwhile, other historians use the term "marriage" to describe ritualized homosexual relationships in Crete during the same period. Italian scholar Eva Cantarella identifies some lesbian relationships in female communities in ancient Greece as "imitation marriages".
There are records of same-sex marriages dating back to the I century. critically or satirically reported. Cicero alluded to the marriage (using the Latin verb for "to marry", i.e. cloud) of the son of Curius the Elder to his enemy Mark Antony, although he does so in metaphorical way to criticize it. Cicero thus affirms that the young Curio was "united in a stable and permanent marriage" with Mark Antony. Marcial also mentioned a series of marriages between people of the same sex, but always in derisory terms against the people he wants to mock.
At least two of the Roman emperors engaged in same-sex unions, and thirteen of the first fourteen Roman emperors are considered to be bisexual or exclusively homosexual. The first Roman emperor to marry a man was Nero, who is reported to have been married to two other men on different occasions. First with one of his freedmen, Pythagoras, with whom Nero assumed the role of wife, and later as husband, the emperor married a young man named Sporus to replace his late wife Poppaea Sabina whom he had killed while drunk. On this second occasion, after Sporus's castration, Nero celebrated the union in a public ceremony, with all the solemnities of marriage, and lived with him as his wife; also one of his friends gave up the "girlfriend" as "required by law." The marriage was celebrated separately in both Greece and Rome in extravagant public ceremonies. The young Emperor Heliogabalus referred to his chariot driver, a blond slave from Caria named Hierocles, as her husband. She also married an athlete named Zótico in a lavish public ceremony in Rome amid the rejoicing of the citizens.
Although the Romans seem to have been the first to celebrate same-sex marriages, the connubium was only possible between a civis Romanus and a civis Romana (that is, between a Roman citizen and a Roman citizen), so a marriage between two Roman men (or with a slave) would have no legal validity in Roman law (apart, presumably, from the arbitrary will of the emperor in the two cases mentioned above). Furthermore, according to Susan Treggiari, "the matrimonium was then an institution involving a mother, mater. The idea implicit in the word is that a man takes a woman in marriage, in matrimonium ducere , so that he can have children with her”.
The rise of Christianity pushed back these practices, which became more and more accentuated with the decline of the Empire. Same-sex marriages continued until Nicene Christianity was proclaimed the state religion of the Roman Empire. Such unions were definitively prohibited on December 16, 342 by the Christian emperors Constantius II and Constantius. This mandate specifically vetoed marriages between men and ordered the execution of those already married:
When a man “marries” in the manner of a woman, a “woman” about to give up men, what does he want, when sex has lost its meaning; when the offence is one that does not agree to know; when Venus changes to another form; when love is sought and not found? We order that the statutes arise, that the laws be harmonized with a vengeful sword, so that those infamous who are now, or who in the future are guilty will be subjected to exquisite punishment.C. Th. 9.7.3
Michael Fontaine of Cornell University's Department of Classics has pointed out that there was no provision for same-sex marriage in Roman law and that the text of the 342 law is corrupted: "to marry a woman” (nubit feminam) instead of “disgracefully sleeping with a man” (cubit infamen) as a condemnation of homosexual behavior between men, not marriage.
According to Robin Lane Fox, among the unusual customs of the isolated oasis of Siwa (now Egypt, once Libya), one of great antiquity that survived into the XX was male homosexuality and same-sex marriage. German Egyptologist George Steindorff explored the oasis in 1900 and reported that homosexual relationships were common and often extended to a form of marriage.
Primitive Christian Church Rules and the Middle Ages
As did other philosophies and religions of the day (such as Stoicism, Neoplatonism, and Manichaeism), the increasingly influential Christianity promoted marriage for procreative purposes. The teachings of the Talmud, Torah, and The Bible specifically prohibited these practices as contrary to nature and the will of the Creator and were seen as a moral deficiency or departing from what is established. Even after the passage of the Theodosian Code, Christian emperors continued to levy taxes on prostitutes until the reign of Anastasius (r. 491-518). In 390, the Christian emperors Valentinian II, Theodosius I, and Arcadius outlawed homosexual sex and those guilty of it were sentenced to be burned alive in front of the public. The Christian emperor Justinian I (r. 527-565) used homosexuals as a scapegoat for problems such as "famines, earthquakes, and pestilences". Although homosexuality was tolerated in pre-Christian Rome, it remained controversial. For example, arguments against same-sex relationships were included in Plutarch's Moralia. In pre-Christian Rome and Greece there had been debate over which form of sexuality was preferable. While many seemed not to oppose bisexuality, there were those who preferred to be exclusively straight or exclusively gay. In the aforementioned work by Plutarch, a debate between homosexual and heterosexual love is recorded.
After the Middle Ages in Europe, same-sex relationships were increasingly frowned upon and prohibited in many countries by Church or State. However, after the fall of the Roman Empire, the Church maintained a certain vagueness: while, in theory, he condemned same-sex relationships because they do not produce children, he tolerated homosexual unions within his own clergy or between teachers and students for whom he was responsible. Some surviving sources attest that the Church actively participated in certain ceremonies, the purpose of which was the spiritual union of two people of the same sex, which the American academic John Boswell considered true homosexual marriages recognized by the religious authority. This is the case of adelphopoiesis (Greek, literally "to make brothers"), which according to Boswell represented an early form of same-sex religious marriage in the Orthodox Church. (However, the historicity of this interpretation is contested by the Greek Orthodox Church, while Boswell's scholarship is criticized as of dubious quality by theologian Robin Darling Young, interpreting it instead as "sibling adoption" or "blood brothers".) Alan Bray considered the Croatian rite of ordo ad fratres faciendum ("order for the formation of brothers") had the same purpose in the medieval Catholic Church and was practiced until the end of the XIX. However, Catholic orthodoxy has always held that marriage is a sacrament instituted "by Christ" between a baptized man and woman.
In late medieval France, the practice of entering into a legal "twinning" contract (affrèrement) may have provided a means for civil unions between unrelated adult men who pledged to live together sharing un pain, un vin, et une bourse ("one bread, one wine, and one bag"). This legal category may represent one of the first forms of authorized same-sex unions.
In Medieval Europe, homosexual relationships were less accepted than in the classical world. Yet, like a gentleman's courtly love for his mistress, deep and passionate same-sex friendship was not only possible, but celebrated. Love in such relationships has traditionally been assumed to be Platonic; although modern scholars dispute this interpretation. On April 16, 1061, a same-sex marriage occurred between two men, Pedro Díaz and Muño Vandilaz, in the Galician municipality of Rairiz de Veiga, where a priest married them in a small chapel. Historical documents about the wedding in the church were found in the monastery of San Salvador de Celanova. >sir William Neville and sir John Clanvowe—, who died in October 1391. The tomb is in a monumental style usually reserved for the joint graves of married couples (with interlocking arms)., for which one author (Bowers) speculates that they maintained homosexual relations. The historian Alan Bray in his book The Friend insists that these sacraments had no sexual connotation, but, in another book called Same Sex Unions & The Churches of Europe, Edouard de Santerre exposes the point of view that homosexuals of the time would be the first to subscribe to these sacraments, since it was a way of making their relationships official and even guaranteeing inheritance rights.[citation required]
Early Modern Period
In Christian Europe there are several cases of women who disguised themselves as men and married other women; this is the case, for example, of the surgeon Eleno de Céspedes (probably transgender, considered lesbian by the Inquisition), the soldiers Catharina Margaretha Linck and Maria van Antwerpen and the charlatan doctor Charles Hamilton (inspiration for the heroine of The Female Husband by Henry Fielding). Michel de Montaigne, a 16th-century 16th-century French philosopher and noted essayist, reports hearing a third-party description of a same-sex wedding that took place some years earlier using the customary Tridentine wedding ceremonies of the Catholic Church. The ceremony is said to have taken place a few years before 1581, in the Basilica of San Giovanni a Porta Latina in Rome.
Same-sex marriages existed in pre-colonial Africa. British anthropologist Edward Evan Evans-Pritchard reported that transgenerational same-sex marriages were practiced among the Azande tribe (in what is now Sudan), between men and boys, considered true "wives"; the men financially compensated the child's family, who helped him from time to time as he would have done with his in-laws, called the child "my wife" and in return were reciprocated as "my husband"; if another man had an affair with the child, the cheated husband could undertake to accuse him of adultery. The Boxer Codex, dated 1590, records the normality and acceptance of same-sex marriage in native Philippine cultures prior to colonization.
Among the buccaneers and pirates of the XVI and XVII homosexual unions between men are known, called matelotage, which consisted of an economic partnership where the couple would agree to share their income and inherit the property of his partner in the event of death. A much-cited example of matelotage as a romantic rather than an economic union is that of John Swann and Robert Culliford, pirates of the Indian Ocean at the turn of the XVII. Its mention in British records represents one of the few written sources of this practice. Beyond the documentation of this relationship, Swann was referred to as "a great consort of Culliford, with whom he lives".
A Chinese writer from the 17th century, Li Yu, attests to same-sex marriages in China in her period. It may have been an attempt to mythologize a system of male marriages in Fujian witnessed by the academic-bureaucrat Shen Defu. At the ceremony the older man in the union would play the masculine role as a qixiong or "foster older brother", paying a "bride price" to the younger man's family—the virgins fetched higher prices—who became the qidi or “adoptive younger brother.” Describing the ceremony, Li Yu detailed: “They do not omit the three cups of tea or the six wedding rituals; it's like a proper marriage with a formal wedding." The qidi then moves into the qixiong's house, where he would be completely dependent on him. The qixiong's parents would treat him as his son-in-law and possibly even help them raise the qixiong's adopted children. These marriages could last up to twenty years, before both men married women to procreate.
Modern Times
The first marriage between women in Spain was that of Marcela Gracia Ibeas and Elisa Sánchez Loriga, who married in 1901 in La Coruña, the second pretending to be a man; Elisa became Mario and Father Víctor Cortiella sanctified the couple's union. Both met at the Normal School for Teachers in La Coruña; Years later they met again when they were practicing their profession as teachers. In 1901 Elisa masculinized her appearance, invented a past and became Mario. Father Cortiella, parish priest of San Jorge, baptized Mario and married the couple in the parish church of San Jorge in La Coruña. They were discovered and ended up fleeing Spain. This marriage was picked up in newspapers and parts of Europe. The judicial system tried to find them to punish them for their marriage, so they fled because of the people's homophobia and mockery and ended up in Argentina. There it was possible that Marcela remarried after Mario died as a "real man".
The generalization of an organized movement with the aim of seeking legal recognition arose in the XX century, especially after the revolution of the 1960s. Marriage was defended as the subscription to a legal contract representing the relationship and coexistence of a couple, based on affection and a common life project, when the couple wishes to formally communicate their preferences to the rest of the members of their community, acquiring the rights and duties pertinent to the current legal formulation. Under this interpretation, the stable homosexual union fits the definition of marriage in which the two contracting parties have equal rights and duties.[citation required]
In the 20th and XXI various types of unions between people of the same sex have been legalized. In 1989, Denmark became the first country to legally recognize a relationship for same-sex couples, establishing registered unions, giving those in same-sex relationships "most of the rights of married heterosexuals, but not the right to adopt or obtain joint custody of a child". In 2001, the metropolitan Netherlands became the first country to establish same-sex marriage by law. As of July 2022, same-sex marriage is legal in eighteen European countries: Andorra, Austria, Belgium, Denmark, Finland, France, Germany, Iceland, Ireland, Luxembourg, Malta, the Netherlands, Slovenia, Spain, Norway, Portugal, the United Kingdom (England, Scotland, Wales, Northern Ireland, Guernsey, Isle of Man and Jersey), Sweden and Switzerland. A referendum was held on 22 May 2015 to amend the Constitution of the Republic of Ireland and allow same-sex marriage. The proposal to add the following declaration to the magna carta was approved: "Marriage can be contracted in accordance with the law by two people without distinction of their sex."
On October 22, 2009, the Swedish Church assembly voted strongly to give its blessing to same-sex couples, including the use of the term marriage.
In the European Parliament there was some discussion about how to require its member states to recognize same-sex marriages celebrated in other member states, as well as civil unions or registered unions of European citizens, in order to guarantee the right to freedom of movement for family members of their citizens. Although they do not recognize same-sex unions, Bulgaria, Latvia, Lithuania and Romania are bound by a ruling of the Court of Justice of the European Union to recognize marriages between people of the same sex celebrated within the European Union and the rights of residence in the community space for couples of European citizens, although this sentence is not always respected in practice, as in the case of Romania, which does not has implemented it. However, the international court confirmed that it will still be up to member states to allow same-sex marriage in their legal systems.
In 2006, South Africa became the first African nation to legalize same-sex marriage and remains the only country on that continent where it is legal. Despite this increase in tolerance of the LGBTI community in South Africa, in response "corrective rapes" have become frequent, targeting mainly poor women in the townships and who have no resources to deal with these crimes due to the notable lack of police presence and the prejudice that may face for reporting the assaults.
America
Ancient Times
In pre-Columbian America, unions of men or women with two-spirit persons have been reported in North American indigenous societies, although there is no written support or evidence of marriages as such. In these unions a man or woman of the tribe, who as a young man showed characteristics of the opposite gender, assumed the obligations of this sex with all its responsibilities; thus, he was part of a third gender (neither male nor female) and treated as wife/husband by the man or woman in the tribe who chose to join that person in a ceremony similar to the heterosexual unions celebrated in these societies. According to Will Roscoe, the two-spirit male and female have been "documented in more than 130 North American tribes, in all regions of the continent". Men who married two-spirits were generally also attracted to women, while women assigned at birth as two-spirits tended to have sexual relations or marriages only with women. "In many tribes, people who entered into same-sex relationships were considered sacred and treated with the utmost respect and acceptance", according to anthropologist Brian Gilley. However, in most tribes a relationship between two spirits and not two spirits was seen as neither heterosexual nor homosexual (in modern terms), but rather more heteronormative; the partners of the two spirits did not see themselves as homosexual, and furthermore, a clear conceptual line was drawn between them and the two spirits.
European explorers, especially the Spanish, reported in their travel accounts that same-sex marriages existed in Amerindian cultures, since homosexuality was closely linked to religious life, as in the case of the Mapuches, Zapotecs and Guaicurúes. The Spanish conquistadores, horrified to discover that "sodomy" was openly practiced among the indigenous peoples of their colonies, tried to put an end to it by subjecting the berdaches (such as the called by the Spaniards) through severe penalties, such as public execution, burning, and torn to pieces by dogs. With the spread of monotheistic religions, the concept of marriage between people of the same sex disappeared among indigenous peoples in the 19th century and early 20th century .
Modern Times
In the United States, during the XIX century, there was recognition of the union of two women who made an agreement of cohabitation, which at the time was called a "Boston marriage"; however, the general public at the time probably did not assume that sexual activities were part of the relationship.
Historians variously trace the beginning of the modern movement in support of same-sex marriage from around the 1980s to the 1990s. In the United States, same-sex marriage became an official request from the gay rights movement after the second national march on Washington for lesbian and gay rights in 1987.
In 1970, James Michael McConnell, a librarian, and Richard John Baker, a law student, applied for a marriage license to Hennepin County (Minnesota) District Court Clerk Gerald Nelson, who denied it because both applicants were men. Baker sued Nelson, insisting that he was not barred, though the trial court dismissed the couple's claims and ordered the clerk not to issue the license. McConnell reapplied in Blue Earth County, where he was able to receive a license., after Baker changed her name to Pat Lyn McConnell to lead county officials to believe they were a male-female couple. McConnell and Baker were married in Minneapolis in a ceremony officiated by a minister from the Hennepin Avenue United Methodist Church. They were proclaimed the first registered same-sex couple in modern history to be legally married. In October 1971, the Court The Minnesota Supreme Court ruled that the refusal to issue a marriage license to McConnell and Baker "does not violate" the US Constitution, ruling that state law prohibits marriages between same-sex couples. Historians argued that the state supreme court opinion did not apply, retroactively, to McConnell and Baker. On October 10, 1972, the United States Supreme Court, refusing to hear the case on appeal, issued an order of a single sentence that read: "Appeal is dismissed for lack of a substantive federal issue." Same-sex marriage in Minnesota was not recognized until 2013. The Internal Revenue Service finally recognized the couple until 2019., when by court order he allowed them to share social security benefits.
The Reverend Troy Perry performed the first gay public wedding in the United States in 1968, which was not legally recognized, and, in 1970, the Metropolitan Community Church filed the first lawsuit seeking legal recognition of marriages same-sex marriage, to no avail. In March 2005, two Unitarian Universalist ministers, Kay Greenleaf and Dawn Sangrey, were indicted on various counts of solemnizing a marriage without a license in New York State. It was the first time a complaint had been filed against clergy for performing same-sex unions in North America, according to the Human Rights Campaign, a Washington, D.C.-based gay rights group.
The first use of the phrase "commitment ceremony" (commitment ceremony), as an alternative term for "gay wedding", is apparently attributed to Australian journalist Bill Woods, who, in 1990, attempted to organize a massive "commitment ceremony" for Hawaii's first gay pride parade. Similarly, the Rev. Jimmy Creech of the First United Methodist Church performed his first "commitment ceremony" for a same-sex couple in 1990 in North Carolina. In January 1987, the Morningside monthly meeting of the Religious Society of Friends became the first Quaker congregation to officiate at a same-sex marriage (using the word marriage, instead of "commitment ceremony") under its jurisdiction on May 30, 1987 with the marriage of Reyson Ame and William McCann. Although other congregations held "commitment ceremonies", Morningside was the first to refer to the relationship as a marriage and grant it equal status.
On June 26, 2015, the United States Supreme Court ruled in Obergefell v. Hodges that marriage is a fundamental right and should be extended to same-sex couples. Prior to this ruling, lower court decisions, state legislation, and popular referendums had already legalized marriage between persons of the same sex. same-sex to some degree in 38 of the 50 US states, comprising approximately 70% of the US population. Federal benefits to legally married same-sex couples had already been extended in June 2013 following the United States v. Windsor. In 2022, Associate Justice Clarence Thomas listed Obergefell as a case that should be reviewed consistent with the constitutional doctrine employed in Dobbs v. Jackson Women's Health Organization, which struck down the case law underlying Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), arguing that abortion protection is not a "deeply embedded" right in the Constitution. To prevent the loss of the right to equal marriage, the House of Representatives passed the Respect for Marriage Act, which repeals the Defense of Marriage Act (declared unconstitutional or legally void by the Supreme Court in the Windsor rulings). and Obergefell) and protects both same-sex and interracial marriages. In July of that year the bill was approved by the House of Representatives and in December by the Senate. The law does not legalize same-sex marriage in the United States, but rather recognizes at the federal level the validity of all marriages, including same-sex marriages, and that no government or state law may disallow or prohibit a legal union performed in another according to their laws.
On July 20, 2005, Canada became the fourth country in the world and the first in the Americas to legalize same-sex marriage nationwide through the enactment of the Civil Marriage Act, which provided a gender-neutral definition of marriage. Court rulings, as of 2003, had already legalized same-sex marriage in eight of ten provinces and one of three territories, whose residents comprised approximately 90% of the population of Canada. Before the law was passed, more than 3,000 same-sex couples had already been married in those areas. Most of the legal benefits commonly associated with marriage have been extended to cohabiting same-sex couples since 1999.
Until September 2022, same-sex marriages are legal in Argentina, Brazil, Canada, Chile, Costa Rica, Colombia, Cuba, Ecuador, the United States, Mexico, and Uruguay. The approval process in Mexico began in Mexico City in December 2009 and ended in Tamaulipas in October 2022, as well as the recognition at the federal level by mandate of Jurisprudential Thesis 43/2015 (10a.) of the First Chamber of the Supreme Court of Justice of the Nation. On September 25, 2022, a referendum was held to replace the Cuban Family Code and enable equal marriage, as well as civil unions, homoparental adoption and "solidarity gestation" (non-profit surrogacy), among other recognized rights. Among non-independent states, same-sex marriage is also legal in Greenland, the British Overseas Territories of the Falkland Islands, and South Georgia and the South Sandwich Islands, the French overseas territories (Guadeloupe, Martinique, Saint Barthelemy, French Guiana, Saint Martin and Saint Pierre and Miquelon) and the Caribbean Netherlands, while marriages celebrated in the Netherlands are recognized by court order in Aruba, Curaçao and Saint Martin. In Bolivia, "free unions" have been celebrated since 2023, which differ from marriage in name, since they grant the same rights and responsibilities as equal marriage; The Bolivian Plurinational Constitutional Court urged "the Plurinational Legislative Assembly to adapt the internal norm that regulates the rights of LGBTI persons to the protection standards established in international instruments on human rights ratified by the State".
Acknowledgment
National legalization timeline
| N.o | Country | Effective method | Entry into force |
|---|---|---|---|
| 1 |  Netherlands
| Adopted by the House of Representatives and the Senate and promulgated by the Head of State | 02001-04-01 1 April 2001 |
| 2 | .svg){kind=small} Belgium
| Adopted by the House of Representatives and the Senate and promulgated by the head of State | 02003-06-01 1 June 2003 |
| 3 |  Spain
| Approved by the Congress of Deputies, after overcoming the veto of the Senate, and promulgated by the head of State | 02005-07-03 3 July 2005 |
| 4 |  Canada
| Approved by the House of Commons and the Senate and promulgated by a delegate from the Crown Representative | 02005-07-20 20 July 2005 |
| 5 |  South Africa
| Recognized by the Constitutional Court, approved by the National Assembly and the National Council of Provinces and promulgated by the Deputy Head of State | 02006-11-30 30 November 2006 |
| 6 |  Norway
| Approved by Parliament and promulgated by the head of State | 02009-01-01 1 January 2009 |
| 7 |  Sweden
| Approved and promulgated by Parliament | 02009-05-01 1 May 2009 |
| 8 |  Portugal
| Adopted by the Assembly of the Republic and promulgated by the head of State | 02010-06-05 5 June 2010 |
| 9 |  Iceland
| Approved by Parliament and promulgated by the head of State | 02010-06-27 27 June 2010 |
| 10 |  Argentina
| Approved by the Chamber of Deputies and the Senate and promulgated by the Head of State | 02010-07-15 15 July 2010 |
| 11 |  Denmark
| Approved by Parliament and promulgated by the Head of State | 02012-06-15 15 June 2012 |
| 12 |  Brazil
| Recognized by the National Council of Justice of the Federal Supreme Court | 02013-05-16 16 May 2013 |
| 13 | .svg){kind=small} France
| Adopted by the National Assembly and the Senate and promulgated by the head of State | 02013-05-18 18 May 2013 |
| 14 |  Uruguay
| Approved by the House of Representatives and the House of Senators and promulgated by the head of State | 02013-08-05 5 August 2013 |
| 15 |  New Zealand
| Adopted by the House of Representatives and promulgated by the representative of the Crown | 02013-08-19 19 August 2013 |
| 16 |  Luxembourg
| Approved by the Chamber of Deputies and promulgated by the head of State | 02015-01-01 1 January 2015 |
| 17 |  United States
| Recognized by the Supreme Court | 02015-06-26 26 June 2015 |
| 18 |  Ireland
| Decided in referendum (62.07 %), approved by the Assembly and the Senate and promulgated by the Presidential Commission in the absence of the head of State | 02015-11-16 16 November 2015 |
| 19 |  Colombia
| Recognized by the Constitutional Court | 02016-04-28 28 April 2016 |
| 20 |  Finland
| Approved by Parliament and promulgated by the head of State | 02017-03-01 1 March 2017 |
| 21 |  Malta
| Approved by Parliament and promulgated by the Head of State | 02017-09-01 1 September 2017 |
| 22 |  Germany
| Approved by the Federal Parliament and the Federal Council and promulgated by the head of State | 02017-10-01 1 October 2017 |
| 23 | .svg){kind=small} Australia
| Approved by the House of Representatives and the Senate and promulgated by the Crown Representative | 02017-12-09 9 December 2017 |
| 24 |  Austria
| Recognized by the Constitutional Court | 02019-01-01 January 1, 2019 |
| 25 |  Republic of China (Taiwan)
| Recognized by the Constitutional Court, approved by Parliament and promulgated by the head of State | 02019-05-24 May 24, 2019 |
| 26 |  Ecuador
| Recognized by the Constitutional Court | 02019-07-08 8 July 2019 |
| 27 | .svg){kind=small} United Kingdom
| Adopted by the House of Commons and the House of Lords (on three constituent nations) and the Scottish Parliament and promulgated by the Head of State | 02020-01-13 13 January 2020 |
| 28 |  Costa Rica
| Recognized by the Constitutional Chamber of the Supreme Court of Justice | 02020-05-26 26 May 2020 |
| 29 |  Chile
| Approved by the Chamber of Deputies and the Senate and promulgated by the head of State | 02022-03-10 10 March 2022 |
| 30 |  Switzerland
| Adopted by the National Council and the Council of States and ratified in referendum (64.10 %) | 02022-07-01 1 July 2022 |
| 31 |  Slovenia
| Recognized by the Constitutional Court, approved by the National Assembly, after overcoming the veto of the National Council, and promulgated by the head of State | 02022-07-09 9 July 2022 |
| 32 |  Cuba
| Approved by the National Assembly, ratified in referendum (66.87 %) and promulgated by the head of State | 02022-09-27 27 September 2022 |
| 33 |  Mexico
| Federative entities changed their laws by different methods | 02022-12-31 31 December 2022 |
| 34 |  Andorra
| Adopted by the General Council and promulgated by one of the co-chairs | 02023-02-17 17 February 2023 |
| |||
Rulings of international tribunals
European Court of Human Rights
Over the years, the European Court of Human Rights (ECHR) has received cases challenging the lack of legal recognition of same-sex couples in certain Council of Europe member states, although it has held that, if Although the European Convention on Human Rights (ECHR) requires them to provide legal recognition, there is no obligation for marriage to be enabled for same-sex couples within its scope. In Schalk and Kopf v Austria (June 24, 2010), the ECtHR ruled that the ECHR does not oblige Member States to legislate or legally recognize same-sex marriages. However, this international court, for the first time, admitted same-sex relationships as a form of "family life." It was a case involving a same-sex Austrian couple who were denied the right to marry. The ECtHR found, by a vote of 4 to 3, that their human rights had not been violated. declared that same-sex unions are not protected by Article 12 of the ECHR (“Right to marry”), which exclusively protects the right to marry of opposite-sex couples (regardless of whether the sex of the couple is the result of birth or sex change), but they are protected by article 8 (“Right to respect for private and family life”) and art. 14 of the ECHR ("Prohibition of discrimination"). In addition, according to the ECHR, States are not obliged to allow same-sex marriage:
The Court acknowledged that a number of Contracting States had extended marriage to same-sex partners, but went on to say that this reflected their own vision of the role of marriage in their societies and did not flow from an interpretation of the fundamental right as laid down by the Contracting States in the Convention in 1950. The Court concluded that it fell within the State’s marginal appreciation as to how to regulate the effects of the change of gender on pre-existing marriages.The Tribunal recognizes that several contracting States have extended marriage to same-sex couples, but continues to say that this reflected their own vision of the role of marriage in their societies and did not stem from an interpretation of fundamental law as established by the signatory States of the Convention in 1950. The Court concludes that it is within the State ' s scope of appreciation of how to regulate the effects of gender change in pre-existing marriages.European Court of Human Rights, Schalk and Kopf v Austria
British judge sir Nicolas Bratza, then president of the ECtHR, gave a speech in 2012 in which he said the ECtHR was ready to declare same-sex marriage a "human right" as soon as soon as enough countries agree to that end.
In Vallianatos and Others v Greece (7 November 2013), the ECtHR held that the exclusion of same-sex couples from the registry of a civil union — a legal form of union available to opposite-sex couples—violates the Convention. Greece had enacted a law in 2008 establishing civil unions only for opposite-sex couples, but a new law in 2015 extended partnership rights to same-sex couples. Oliari and Others v Italy (21 July 2015) went further and established a positive obligation for member states to grant legal recognition to same-sex couples. Italy thus violated the Convention and finally implemented civil unions in 2016. The decision set a precedent for possible future cases with respect to Member States, certain British and Dutch territories and States with limited recognition (except Kosovo), which currently do not recognize the right to family life of same-sex couples. Chapin and Charpentier v France (June 9, 2016) largely reaffirmed Schalk and Kopf v Austria, holding that denying access to marriage to a same-sex couple does not violate the Convention. At the time of the ruling, France already allowed same-sex marriage, although the case originated in 2004, when only the civil pact of solidarity (pacs) was available to same-sex couples in France. The ruling in Chapin and Charpentier v France was used by some anti-LGBT groups to spread fake news "the ECtHR unanimously declared that gay marriage is not a right".
Article 12 of the European Convention on Human Rights (1950) establishes that: "As of marriageable age, men and women have the right to marry and found a family in accordance with the national laws governing the exercise of this right », without limiting marriage to those in a heterosexual relationship. However, the ECtHR stated in Schalk and Kopf v Austria that this provision was intended to limit marriage to heterosexual relationships, as it used the terms "the man and the woman" instead of "all or "anyone".
Court of Justice of the European Union
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On June 5, 2018, the Court of Justice of the European Union ruled, in a case from Romania, that, under the specific conditions of the couple in question, married same-sex couples have the same residency rights as other couples married in a European Union country, even if that country does not allow or recognize same-sex marriage. However, the ruling was not implemented in Romania and on 14 September 2021 the European Parliament approved a resolution calling on the European Commission to ensure that the ruling is respected throughout the EU.
Inter-American Court of Human Rights
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On January 11, 2018, an advisory opinion of the Inter-American Court of Human Rights (IACHR), requested by the Republic of Costa Rica, ruled that articles 2, 11.2, 17 and 24 of the American Convention on Human Rights (Pact of San José) recognize same-sex marriage as a human right. According to the opinion of this international court, the States that are part of the Pact of San José must guarantee the access of homosexual couples to already existing forms, including marriage:
The State must recognize and guarantee all rights arising from a family bond between persons of the same sex in accordance with articles 11.2 and 17.1 of the American Convention [...] According to articles 1.1, 2, 11,2, 17 and 24 of the Convention it is necessary for States to guarantee access to all existing figures in domestic legal systems, including the right to marriage, to ensure the protection of all the rights of families made up of same-sex couples, without discrimination with respect to those made up of heterosexual couples [... ]
Recognizing the difficulty of passing laws of this type in countries where there is strong opposition to marriage equality, the IACHR recommended that governments pass temporary decrees until new legislation is enacted. It also concluded that it was impermissible and discriminatory for same-sex couples to have a separate legal provision (such as civil unions) in lieu of marriage.
Although not binding, the resolution can serve as a legal basis in the other States party to the Pact of San José: Barbados, Bolivia, Chile, Costa Rica, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, the Dominican Republic (although the accession of this country was repealed in 2014) and Suriname. Although Argentina, Brazil, Colombia and Uruguay are also under the jurisdiction of this international court, they had already approved equal marriage before the ruling was handed down. Until 2021, only Costa Rica (2018) and Ecuador (2019) They have recognized the contentious jurisdiction of the IACHR and have extended the right to marry to same-sex couples. As a result of the ruling, lawsuits have also been filed before judicial or constitutional instances in Bolivia, Honduras, Panama, and Paraguay (to recognize marriages celebrated abroad).
Judicial Committee of the Privy Council
On 14 March 2022, the Judicial Committee of the Privy Council, which serves as the court of final appeal in some British territories, Commonwealth countries and UK bodies, published its judgment in three cases of appeal from Bermuda and the Cayman Islands challenging final court decisions from their respective jurisdictions:
- In the Bermudian case, it was ruled that a law passed by the Bermuda Parliament in 2018, which prohibits equal marriage in the territory of overseas, is constitutional. Previously, the Supreme Court of Bermuda had ruled that section 53 of the Law on Domestic Excise (Domestic Emphasis)Domestic Partnership Act) of 2018, which had emerged as a response to the failed 2016 referendum and which allows same-sex couples to form de facto couples, but denies them marriage, violates freedom of conscience in the Constitution and ordered the suspension of the ban, enabling equal access to marriage on two occasions, but the Government appealed to the Court of Appeal, which dismissed its claim in 2019. However, in the view of the Judicial Committee, the Constitution of Bermuda does not require the State to recognize same-sex marriages. On the other hand, in the ruling the judges of this high court recognize that the historical background of marriage is "one of stigmatization, denigration and victimization of homosexual persons and that the restriction of marriage to opposite sex couples can create a sense of exclusion and stigma among homosexual persons", but that "the international instruments and constitutions of other countries cannot be used to interpret (in the Constitution of Bermuda) the same right to legal recognition of sex." Bermuda becomes the first and only case where equal marriage is legalized and then abolished; marriages concluded prior to the ruling will remain valid under an amendment adopted on 21 July 2022 to the Law on Domestic Insurance.
- In the case of Cayman, the High Court ruled that there was no right to same-sex marriage in the Constitution and that it is a "assumption of choice" of the Legislative Assembly if it wishes to adopt it in the future. The appeal had occurred after the Government denied two women a marriage certificate in 2018. The couple filed a lawsuit and in 2019 the Grand Court of the Cayman Islands ruled in their favour, but that ruling was overturned by the Court of Appeals as the Cayman Islands Constitution explicitly prohibits same-sex marriage, so the case stalled to the Judicial Committee. Although the Justice ordered that the couple be granted a status equivalent to that of marriage, the Government refused to apply the local decision.
In the general arguments of the ruling, the justices stated: "No restriction is placed on the worship, teaching, practice and observance of the plaintiffs who state their belief in the validity of same-sex marriage. The protection of a "practice" does not extend to the requirement that the State grant legal recognition to a marriage entered into in accordance with that practice." Furthermore, the exclusion of same-sex couples from the institution of marriage was not attributable, as the plaintiffs had argued, to their beliefs but to their being of the same sex. In his dissenting opinion, Lord Philip Sales said the Attorney General's arguments did not value the constitutional text as a legal instrument "containing general protection for freedom of conscience and the right to express one's beliefs." conscientious to live by those beliefs (subject to a state power to interfere with that right when justified on social grounds, the allegation of which is absent in this case)". Under the common law, the decisions of the Judicial Committee can be considered precedents in the territories and countries that recognize it as a court of appeal of last resort.
On 6 July 2022, a bill was introduced in the UK House of Lords to allow equal marriage in overseas territories where it remains illegal (Anguilla, Bermuda, Cayman Islands, Montserrat, Turks and Caicos and British Virgin Islands). The provisions would empower local governors to introduce legal changes that enable conjugal unions for same-sex couples, introduce equal rights between same-sex and different-sex couples, and protect religious individuals and organizations from being forced to perform marriages. religious of the same sex.
International Organizations
The employment conditions of the staff of international (non-commercial) organizations are in most cases not governed by the laws of the country where their offices are located. Agreements with the host country safeguard the impartiality of these organizations.
Despite their relative independence, few organizations recognize same-sex couples without conditions. United Nations agencies recognize same-sex marriages if the country of citizenship of the employees in question supports it. In some cases, these organizations offer a limited selection of benefits that are normally provided to mixed-race married couples. unmarried couples or registered unions of their staff, but even people with a recognized mixed civil union in their country of origin are not guaranteed full recognition of this relationship in all organizations. However, the World Bank recognizes registered partnerships.
Other provisions
Civil unions
Civil union, common law partnership, domestic partnership, registered or unregistered partnership, and unregistered cohabitation statuses offer various legal benefits of marriage. In 2022, the countries that have an alternative form of legal recognition other than marriage at the national level are: Andorra, Bolivia, Croatia, Cyprus, Slovenia, Estonia, Greece, Hungary, Israel, Italy, Liechtenstein, the Czech Republic and San Marino. Poland and Slovakia offer more limited rights. At the subnational level, the Dutch constituent country of Aruba allows same-sex couples to enter civil unions or recognized partnerships, but restricts marriage to opposite-sex relationships. In addition, various cities and counties in Cambodia and Japan offer same-sex couples different levels of benefits, including hospital and other visitation rights.
In addition, seventeen countries that have legally recognized marriage equality have an alternative form of recognition for same-sex couples, generally available for heterosexual couples as well: Argentina, Australia, Austria, Belgium, Brazil, Chile, Colombia, Ecuador, Spain, France, Luxembourg, Malta, the Netherlands, Portugal, South Africa, the United Kingdom and Uruguay.
They are also available in parts of the United States (Arizona, California, Colorado, Hawaii, Illinois, New Jersey, Nevada, and Oregon), Mexico, and Canada.
Non-sexual same-sex marriage
In Kenya, same-sex marriage is practiced among the Gĩkũyũ, Nandi, Kamba, Kipsigis and, to a lesser extent, neighboring villages. Approximately 5-10% of women are in this type of marriage. However, this is not seen as homosexual, rather it is a way for families without sons to keep their heritage within the family.
Among the Igbo and probably other peoples of southern Nigeria, there are circumstances where a marriage between women is considered appropriate, such as when one is childless and her husband dies, causing her to take a wife to perpetuate her inheritance and family lineage.
Constitutional prohibition
In response to the international expansion of same-sex marriage, several countries have enacted "precautionary" constitutional bans, most recently Georgia in 2018 and Russia in 2020. In other countries, constitutions have been adopted that have a wording that specifies that marriage is between a man and a woman, although, especially with older constitutions, they were not necessarily written with the intention of prohibiting marriage equality. As of July 2020, 35 independent states (including Artsakh) and 3 dependents have passed amendments that explicitly prohibit the legal recognition of same-sex marriage, limiting this type of union to one man and one woman.
Since 2014, Nigeria has criminalized all forms of same-sex unions following the passing of the Same Sex Marriage (Prohibition) Bill, 2011).
Studies
The majority academic consensus is that homosexuality is a normal and natural manifestation of human sexuality, that sexual orientation cannot be chosen, and that children of same-sex couples can receive the same or even better upbringing than children. of opposite-sex couples. This is based on research results between 1998-2015 from the University of Virginia, Michigan State University, Florida State University, the University of Amsterdam, the Psychiatric Institute of New York State, Stanford University, University of California San Francisco, University of California Los Angeles, Tufts University, Boston Medical Center, Committee on Psychosocial Aspects of Child and Family Health, and independent researchers. In 2004, the American Anthropological Association stated:
The results of more than a century of anthropological research on homes, relationships of kinship, and families, in all cultures and at all times, do not demonstrate the idea that civilization or viable social orders depend on marriage as an exclusively heterosexual institution. On the contrary, anthropological research supports the conclusion that a wide range of family types, including families built between same-sex couples, can contribute to stable and human societies.
However, some researchers question the finality of the evidence, and others point out that while research has found that families headed by (at least) two same-sex parents are generally better for their children, there is a need to address cases of families with more than two same-sex parents, such as in some collaborative stepfamilies, intergenerational families, and shared parenting arrangements between lesbian women and gay men.
Nurture
Professional organizations of psychologists have concluded that children can benefit from the well-being that results when their parents' relationship is recognized and supported by the institutions of society, for example, through civil marriage. For example, the Canadian Psychological Association (CPA) stated in 2006:
Studies (including those in which marriage opponents of same-sex couples seem to depend) indicate that the physical and psychological financial well-being of parents is reinforced by marriage and that children benefit from being raised by two parents within a legally recognized union. As already stated in 2003 by the CPA, the stress factors that can be found between gay and lesbian parents and their children are more than likely the result of how society treats them that deficiencies in their aptitude as parents. The CPA recognizes and appreciates that individuals and institutions have the right to their views and positions on this issue. However, CPA is concerned that some are diverting the results of psychological research to support their positions, when they are actually based on other belief systems or values. The CPA states that children benefit from the well-being that occurs when the relationship of their parents is recognized and the support of the institutions of society.
The CPA has stated that the stress faced by gay and lesbian parents and their children is more likely to result from the way society treats them than from any deficiency in parenting skills.
The American Academy of Pediatrics concluded in an analysis published in Pediatrics in 2006 that:
There are numerous tests that show that children raised by same-sex parents evolve as well as those raised by heterosexual parents. More than 25 years of research document that there is no relationship between the sexual orientation of parents and any measure of emotional, psychosocial and behavioral adaptation of the child. These data have shown that there is no risk for children, which results from growing up in a family with one or more gay parents. Adults conscious and willing to upbring, whether male or female, heterosexual or homosexual, can be excellent parents. The rights, benefits and protections of civil marriage can further strengthen these families.
Adolescence
A study of nationwide data from the United States from January 1999 to December 2015 found that the rate of suicide attempts among elementary and middle school students (grades 9-12) overall decreased by a 7% and those with a minority sexual orientation within the same grade level decreased by 14% in states that made marriage equal, resulting in approximately 134,000 fewer suicide attempts each year in the United States. The researchers took advantage of the gradual manner in which same-sex marriage took hold in the United States (expanding from one in 2004 to all fifty states in 2015) to compare the rate of suicide attempts among youth in each state during the study period. When marriage equality was passed in a particular state, the reduction in the rate of suicide attempts among youth in that subnational entity became permanent. There was no reduction in the rate of teen suicide attempts in a particular state until that state recognized same-sex marriage. The study's principal investigator noted that "the laws that have the greatest impact on adults gay children can make gay children feel more hopeful for the future.”
Health
Data from psychological and other social science studies up to 2006 on same-sex marriage compared to heterosexual marriage indicate that same-sex and different-sex relationships do not differ in essential psychosocial dimensions, that sexual orientation of parents is not related to their ability to provide a healthy and nurturing family environment and that marriage confers important psychological, social and health benefits. Same-sex parents/caregivers and their children are likely to benefit in many ways from legal recognition of their families, and providing such recognition through marriage will confer greater benefits than civil unions or domestic partnerships. Various psychological studies have shown that negative messages about marriage equality in the media create a harmful environment for the LGBTI population that can affect their mental health and well-being.
In 2009, a pair of Emory University economists linked the passage of state bans on same-sex marriage in the United States to an increase in HIV infection rates. The study linked the passage of a ban on marriage equality in a state with an increase in the annual rate of HIV within that state of approximately 4 cases per 100,000 population. In 2010, research from the Columbia University Mailman School of Public Health, which examined the effects of institutional discrimination on the psychiatric health of lesbian, gay, and bisexual (LGB) people, found an increase in psychiatric disorders, including a more than doubling increase in anxiety disorders, among the population LGB from states that instituted bans on same-sex marriage. According to the author, the study highlighted the importance of abolishing institutional forms of discrimination, such as those that lead to disparities in the mental health and well-being of LGB people. Institutional discrimination is characterized by conditions at the societal level that limit opportunities and access to resources by socially disadvantaged groups.
The American Psychological Association stated in 2004: “Denying access to marriage to same-sex couples can especially harm people who also experience discrimination based on age, race, ethnicity, disability, gender, and gender identity., religion, socioeconomic level, etc.”. Also that same-sex couples who can only opt for a civil union, as opposed to a marriage, "are denied equal access to all benefits, rights and privileges provided by federal law to married couples," which that it has adverse effects on the well-being of same-sex couples. That year, the American Sociological Association stated that: "...a constitutional amendment defining marriage as between a man and a woman intentionally discriminates against lesbians and gays, and their children and other dependents, denying them access to the protections, benefits, and responsibilities that married couples automatically enjoy... We believe that the official justification for the proposed constitutional amendment is based on prejudice rather than research empirically... the American Sociological Association strongly opposes the proposal that a constitutional amendment define marriage as exclusive to a man and a woman." Also, in an amicus curiae statement filed In the California Supreme Court in 2007, the American Psychological Association, the American Psychiatric Association, and the National Association of Social Workers identified sexual orientation as "not simply a personal characteristic that can be defined in isolation [...] rather, [...] defines the universe of people with whom you are likely to find fulfilling and satisfying relationships":
Homosexuality is neither a disorder nor a disease, but a normal variant of human sexual orientation. The vast majority of gays and lesbians live happy, healthy, well adapted and productive lives. Many gays and lesbians have permanent relationships with same-sex people. In essential psychological terms, these relationships are the equivalent of heterosexual relationships. The institution of marriage allows individuals a range of benefits that have a favorable impact on their physical and mental well-being. A large number of children are currently being raised by lesbians and gais, both in same-sex couples and single parents. Empirical research has consistently shown that homosexual parents do not differ from heterosexuals in parental skills, and that their children do not show any deficits compared to children raised by heterosexual parents. State policies that veto same-sex marriage are based solely on sexual orientation. As such, they are both a consequence of the stigma historically associated with homosexuality, and a structural manifestation of that stigma. To allow same-sex couples to marry, the Supreme Court would end the anti-gay stigma imposed by the state of California through its veto on the right to marry these couples. In addition, allowing them to marry would give them access to social support that facilitates and strengthens heterosexual marriages, with all the psychological and physical benefits associated with such support. Furthermore, if their parents can marry, the children of same-sex couples will benefit not only from legal stability and other family benefits provided by marriage, but also from the elimination of stigmatization sponsored by the state of their families. There is no scientific basis to distinguish between same-sex couples and different-sex couples with respect to their legal rights, obligations, benefits, and duties granted by civil marriage.
Controversy
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Discussion of same-sex marriage includes debate based on social views and majority rule, religious convictions, economic arguments, health-related concerns, and a variety of other topics.
Opponents of same-sex marriage say that, while it benefits the couples who participate in it and the children in their care, these unions should be renamed by something other than marriage on grounds of "etymology", while others argue that same-sex marriage undermines the right of children to be raised by a mother and father, because for them children are better cared for by opposite-sex couples. Some more extremist voices qualify all LGBTI expression as "unnatural" and "abnormal" (invoking the procreative argument) and that the recognition of same-sex unions would promote homosexuality in society. On the other hand, the Supporters of same-sex marriage say banning it violates the fundamental right to equality before the law and that governments should not regulate personal relationships, while others argue that same-sex marriages provide social benefits to same-sex couples. and that its legalization would help reduce stigma, prejudice and discrimination against these couples.
General arguments
Currently, the debate on the legality and scope of same-sex marriage is one of the most agitated and dynamic in the Western world.
Opponents of law reform believe that the union of a man and a woman is the only definition of marriage (semantic argument), while they say that it is the basis for procreation (procreative argument). They argue that this definition has existed for centuries and that it is an institution that pre-exists the State (traditionalist argument) and corresponds to its essence, distinguishing it from other indefinite mutual protection pacts. They allege that altering the foundations of marriage based on cases limits is equivalent to converting the exception to the rule (eg, sterility, although homosexuals are not sterile, since they can have their own children through artificial insemination or a surrogate); while equating heterosexual and homosexual unions in terms of their sentimental and loving (subjective) foundation would then allow the state institutionalization of marriage to be extended to any other type of couple relationship (as was already done with interracial or interreligious marriages), Invoking the unfounded argument that it would "pave the way for polygamy, incest", "child marriage, arranged marriages or mass weddings of couples that are celebrated in the moon sect" (not allowed in any country that has not legalized equal marriage nor are they part of the pro-LGBTI political agenda). The limit, therefore, is found from the point of view of the natural law argument in a principle of natural order.
Sectors that support same-sex marriage reject the above arguments and maintain that there are insufficient reasons to justify depriving same-sex marriages of the protection provided by the legal system or the state apparatus without incurring in a form of discrimination; that is, an unjustified differentiation. They reject the semantic argument —because they say that it constitutes an etymological fallacy due to its circularity or tautology—, the procreative argument —because of its partiality, since the laws that prohibit equal marriage do not apply to heterosexual couples who do not want to have children, nor to sterile people or the elderly— and the traditionalist argument —because of its disconnection with accepted social and ethical principles—, indicating that the marriage reform to include the rights of homosexuals is a matter of equality before the law. The philosopher Javier Ugarte maintains that the only tradition that currently supports discrimination is religious, since all political ideologies are based on the principle of equality before the law; In addition, preventing access to marriage for any person means opening a gap between the rights they possess as a national of a State (which are all) and their citizen rights (which in that case would be reduced). Possibly due to this distortion, a A considerable part of Western society believes that gays and lesbians need to be allowed to marry, so that they have the same rights as heterosexual couples.[citation needed] The idea that same-sex marriage is a privilege when dealing with different realities is refuted by those who argue that in jurisprudence the simple difference is not valid if it is not shown that it is relevant to merit a different legal treatment, since that all human beings are the same or different from others in some dimension.
Generally, marriage grants many rights that common-law couples do not receive, even when this institution of common-law couples is regulated by the positive legal system. Depending on the country, this difference in rights covers matters such as immigration, social security, taxes, inheritance and the adoption of children. In addition, separating couples into two types of institutions (one for opposite-sex unions —marriage— and another for same-sex unions —domestic partnerships—) is considered, by those who defend the institution of equal marriage, discriminatory, since they consider that it is in line with the general rejection caused by the legal doctrine separate but equal, which in the past justified racial segregation. Therefore, those who support marriage between people of the same sex attribute the rejection of it to homophobia, especially on the part of the Catholic Church and other Christian creeds, or to heterosexism, establishing comparisons between the prohibitions on marriage between people of the same sex and the old restrictions on interracial marriage. On the other hand, in the debates around the establishment of equal marriage, some of its opponents claim the defense of an "ideal family model" but reject homophobia. Conversely, others believe that it is in fact the broad view of homosexuality and LGBTI people that the opposition protests are raising.
Starting in the 1980s, the LGBTI movement began to move towards an approach, sometimes described as integrationist, in which the call for "homosexual liberation" and the end of "hetero-patriarchy" gave way to more recognition of civil rights and equality before the right of a couple, although, according to opponents, the Universal Declaration of Human Rights only speaks of equality between people and that the principle of equality before The law requires that only situations that are equivalent be treated in the same way. The desire for marriage between men and women is based, therefore, on the value of equality on which democratic societies are based. From there, a certain normalization of homosexuality has been observed in political discourse through end of the 20th century, moving from "deviation" to behavior simply described as "different" in democratic societies. The evolution of the demands of the LGBTI movement is not unanimous either, some of its members denouncing the "bourgeois conformism" of marriage, in contrast to the "sulphurous" character of certain homosexual sectors. In addition, some voices within the movement have proposed the repeal of the current form of marriage in its entirety.
The Office of the United Nations High Commissioner for Human Rights considers that marriage is a right that assists all people regardless of their sexual orientation. Various organizations in defense of human rights work to see recognition this right. This support is based on the argument of equality before the law of all citizens, as well as on the physical and mental health problems that the prohibition of access to marriage can cause to same-sex couples. In addition, the recognition of equal marriages allows the normalization of LGBTI relations.
Legislative or judicial jurisdiction
There are different positions regarding the way marriage equality should be introduced in democratic jurisdictions. A “majority rules” position (direct democracy) holds that same-sex marriage is valid, void, or illegal depending on the option chosen by a simple majority of voters (via referendums) or their elected representatives. (in the Legislative).
In contrast, the civil rights approach holds that, after carefully examining both sides of the dispute, the institution can be validly created through the ruling of an impartial judiciary in the exercise of its constitutional duties, in determining whether the right to contract marriage regardless of the sex/gender of the participants is guaranteed by local or international human rights legislation.
Family Life
The scientific literature indicates that the financial, psychological, and physical well-being of parents improves with marriage and that children benefit from being raised by two parents in a legally recognized union, whether it is a union between persons of the same or opposite sex. Scientific research has generally been consistent in demonstrating that gay and lesbian parents are just as fit and capable as heterosexual parents and that their children are psychologically healthy and as well adjusted as children raised by heterosexual parents. reviews of the scientific literature, there is no evidence to the contrary.
As a result, professional scientific associations have advocated for equal marriage to be legally recognized, because it will favor children of same-sex parents or caregivers. Judith Stacey, a professor at New York University, points out that: "Seldom is there such a broad consensus in any area of the social sciences as in the case of gay-parent families, so the American Academy of Pediatrics and all large professional organizations with expertise in child welfare have issued reports and rulings supporting the rights of gays and lesbians as parents". The Canadian Psychological Association has expressed concern that some individuals and institutions are misrepresenting the findings. of psychological research to support their positions, more based on other belief systems or values.
Opponents of same-sex marriage point out that children are better off with both mother and father and therefore the state should encourage the 'traditional family' model, giving it special status. They say that children should have the right to be raised by a mother and father and that the government should not support a marriage that cannot provide that. Maggie Gallagher, an opponent of marriage equality, points out that the conjugal institution is a way of encouraging monogamy and commitment of those who can create children through their sexual union. Some groups argue that children raised by homosexual parents will also develop homosexual or bisexual preferences or that they will be more likely to have a relationship of the same sex at maturity.
On the other hand, those who support marriage equality point out that, by expanding marriage to LGBT people, the State in fact protects the rights of all married couples and, if they have them, their children, without discrimination, without affect in any way the rights of married different-sex couples and their children, biological or adopted. Gay activist Jonathan Rauch has argued that marriage is good for all men, regardless of whether they are heterosexual or homosexual, since engaging in their social roles reduce male aggressiveness and promiscuity.
Adoption of minors
States that allow equal marriage also allow joint adoption of children by people of the same sex, with the exception of some states in Mexico. Andorra and Israel, which do not recognize same-sex marriage, allow joint adoption by unmarried LGBTI couples. Some States allow step-adoption by people who are in a same-sex relationship but not married: Croatia, Estonia, Italy (on a case-by-case basis), Slovenia, and Switzerland. In 2010, more than 16,000 same-sex couples they were raising approximately 22,000 adopted children in the United States, representing 4% of all children adopted in that country.
Surrogate pregnancy and in vitro fertilization
For gay or bisexual men (as a couple or alone) there is the option of surrogacy, a process in which a woman sustains another person's child in her uterus through artificial insemination or receives another woman's fertilized egg by surgical implantation until birth. For lesbian or bisexual women (partnered or solitary) there is the option of artificial insemination. The legality of these arrangements is subject to controversy in many jurisdictions, ranging from outright bans to varying degrees of accessibility, with or without subsidies or social aid.
Transgender and Intersex Marriage
The legal status of marriage equality may have implications for marital relationships in which one or both parties are transgender, depending on how the term sex is defined in the law. Due to technicalities, transgender and intersex people may be prohibited from marrying "opposite" sex partners or may only be allowed to marry "same" sex partners. In those jurisdictions where marriages are defined without regard to a requirement of a male and a woman these problems do not occur. In addition, in the jurisdictions that recognize a legal and official change of gender, the transgender man or woman may marry according to the adopted gender identity.
In the United Kingdom, the European Court of Human Rights ruled in Goodwin v UK and I v UK (July 11, 2002) that there is no justification for preventing transsexuals from enjoying the right to marry. In Bellinger v Bellinger (10 April 2003), the English courts held that the non-recognition of gender change for the purposes of marriage in section 11(c) of the Causes Act Matrimonial Causes (Matrimonial Causes Act) of 1973 was incompatible with the right to respect for private life (art. 8) and the right to marry (art. 12) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. However, the House of Lords did not consider that the issues raised in the case were suitable to be determined in court and left the matter to Parliament, which in 2004 enacted the Law on Human Rights. Gender Recognition Act (Gender Recognition Act), coinciding with most European states that allow marriage in the adoptive gender role and stipulating that a person who has lived in the chosen gender for at least two receive a certificate of recognition that makes their new status official. Because marriages in the UK were until recently only for different-sex couples and civil unions are only for same-sex couples, a person had to dissolve their civil union before obtaining a certificate of recognition; [citation needed] the same applied previously to marriages in England and Wales and still does in other territories. These people are then free to opt for or re-form a civil union or marriages in accordance with their newly recognized gender identity. In Austria, a similar provision requiring transgender people to divorce before their legal sex label was corrected was declared unconstitutional in 2006.
In Quebec, before the legalization of same-sex marriage, only singles could apply for a legal gender change; this restriction was removed with the new law. A similar provision that included sterilization also existed in Sweden, but it was phased out in 2013. In the United States, transgender and intersex marriages were subject to legal hurdles. Since state governments decide the definitions and application of marriage, these restrictions vary from state to state, as some of them prohibit legal gender changes.
Divorce
Among the main criticisms of opponents of same-sex marriage are that LGBTI couples tend to be more "unstable", that they change relationships "more frequently" or that they "do not have sexual fidelity", because they say that " a "stable" homosexual relationship is bound to fail, which is intrinsic to the dynamics of homosexual desire." However, the results of a 2011 study show that the divorce rate for same-sex couples in the United States is 2% per year, the same as opposite-sex couples. For its part, some research has revealed that committed relationships between women do not last as long as between men and indicates that male couples are less likely to break up than men. the heterosexuals; Regarding the reasons that lead to lesbian divorce, academics suggest that it could be because they have higher standards in matters such as receiving attention, sharing tasks or expenses and because women tend to be more demanding in their relationships regardless of their sexual orientation, the latter citing analyzes of causes of divorce between heterosexual couples. In 2021, twenty years after equal marriage was legalized in the Netherlands, the Central Statistics Agency reported that, for that year, more than 28,000 same-sex couples had married in the country, of which 4,500 (16%) had separated or divorced. They also stated that female couples were more likely to divorce (around 26%), while heterosexual couples were 16% and male couples 14%.
In federal or self-governing countries where same-sex marriage is not legalized nationally but in some of its subnational entities or constituent nations (such as Aruba within the Kingdom of the Netherlands), there may be legal issues for divorcees who regularize their situation after a change of residence. In the United States, before the case Obergefell v. Hodges, couples in same-sex marriages could only be divorced in jurisdictions that recognized their unions, with a few exceptions.
Following the dissolution of a same-sex marriage, there are pending legal issues regarding the rights of the spouses to legal custody of their biological children, which may or may not have a direct solution depending on the country or, if is a federal State, subnational entity. Child custody policies include various guidelines that determine who the son or daughter will live with after divorce, how time will be divided in joint custody situations, and visitation rights. The most frequently applied custody guideline is the principle of best interests of the child, which takes into account the preferences of the parents and the minor, the interactions between parents and children, the adjustment of minors and the health mental and physical of all family members. The application of this principle has been surrounded by controversy, especially in situations where the justice applicator considers the sexual orientation of one of the parents as grounds for denying custody, which is considered "discrimination and arbitrary interference in private life" by the Inter-American Court of Human Rights.
Terminology
The terms "same-sex marriage" or "equal marriage" are preferred among supporters over "gay marriage" or "homosexual marriage." In the latter, bisexuals may be excluded. However, none of these terms is used legally, since in the legal systems in which it is allowed, the difference in sex is simply eliminated as a marriage requirement and the reference to the sex of the future spouses, and of those who contract it, is omitted. using neutral expressions as a spouse; no new laws are enacted with this specific denomination.[update] In some countries the expression "marriage for all" is used, as in the case of France, Switzerland, Germany, Austria, etc., a term considered "inappropriate" by the conservative sociologist Nathalie Heinich, even "fallacious" by the director of the French Jesuit magazine Études, Pierre de Charentenay, who He assures that the institution of marriage is not really enabled "for everyone" in his country, since it is prohibited in certain cases, particularly for minors and members of the same family.
Anthropologists have struggled to determine a definition of marriage that captures the commonalities of this social construction in cultures around the world. Many proposed definitions have been criticized for not recognizing the existence of same-sex marriage in some cultures, including in more than thirty African ethnic groups, such as the Kĩkũyũ and the Nuer.
As several countries are revising their marriage laws to recognize same-sex couples in the 21st century, the main dictionaries have revised their definitions of the word marriage to eliminate gender specifications or complement them with secondary meanings to include gender-neutral language or explicit recognition of unions between people of the same gender. sex. For example, the Oxford English Dictionary amended its definition of marriage in 2000 and the Diccionario de la lengua española added a meaning on equal marriage in 2012, although this was criticized by pro-LGBTI organizations for including in the text "'according to some legislations', since they defend that the concept is the same regardless of the laws and that "it is a nuance that is not specified in the case of marriage between a man and a woman"".
In 2017, the Fundación del Español Urgente (Fundéu) published an entry that recommended «homosexual marriage [...] a more precise expression than equal marriage to refer to to relationships between people of the same sex. Citing the Diccionario de la lengua española, they argued that the adjective egalitarian "means 'that entails equality or tends to it' and 'that advocates social equality'. It does not follow from these definitions that this equality is necessarily related to the sex of the contracting parties”. Likewise, they assured that equal marriage "can also refer - and, in fact, this is how it has been used - to a marriage between people of different social class or to one in which the two spouses enjoy the same rights". The criticism that aroused the recommendation forced the retraction of Fundéu and the elimination of the entry.
Opponents of same-sex marriage, mainly conservative religious groups, use the term "traditional marriage" to refer to a conjugal union between a man and a woman. On the other hand, advocates of Equal marriage, questioning the fact that religious dogmas are rooted in secular institutions, use the expression "exclusive marriage" to bring together the definitions postulated by traditionalist political and religious associations that exclude, to a greater or lesser degree, same-sex couples sex of access to marriage equality.
Religious postures
The doctrines of the main monotheistic religions condemn homosexuality and other manifestations of human sexuality, admitting only marriage between a man and a woman. Likewise, in public debate religious leaders are among the main opponents of marriage egalitarian, demanding that the State should only admit its vision of marriage even within the civil sphere, which has raised discussions about the influence of religious communities in society and politics, the situation of the Church-State separation and the process of secularization within the Churches themselves. In countries where same-sex marriage is legal, exemptions are generally created to allow religious associations not to perform such marriages, based on rights of freedom of worship of expression and thought.
The positions of the Christian Churches are divided into conservative, liberal or neutral. They are opposed by the Catholic Church, the Orthodox Churches, the Assemblies of God, the Southern Baptist Convention, Jehovah's Witnesses, the Church of Jesus Christ of Latter-day Saints (LDS Church), the Adventist Church of the Seventh Day, etc., condemning as a sin any homosexual sexual activity and, by extension, same-sex marriage. In 2015, the LDS Church announced the denial of privileges to the children of homosexual couples, except for those who are of legal age and who demonstrate that they are not in favor of "practicing" homosexuality; Likewise, in the same modification of its official manual, homosexuals who do not restrain their desire to live in accordance with their sexual orientation are referred to as "excommunication", since they consider homosexual sexual practice a sin, but not the fact of to be homosexual. The changes caused part of its LGBTI membership to apostasy. ».
Some Anglican, Protestant, and Evangelical denominations perform same-sex marriages. Christian churches that marry same-sex couples include the Metropolitan Community Church, the Church of Norway, the Church of Sweden, Danish People's Church, United Church of Canada, United Church of Christ, Universalist Church, Religious Society of Friends (Quakers), Community of Christ (dissident Mormon branch of LDS Church), the Disciples of Christ, etc. There are international liberal evangelical Christian denominations with friendly views, such as the Alliance of Baptists and the Affirming Pentecostal Church International, which practice same-sex marriage. The United Protestant Church of France and the Union of Protestant Churches of Alsace and Lorraine have joined. pronounced in favor of the possibility of blessing equal marriages. Other Churches bless marriages or unions between people of the same sex with a different rite of marriage, such as the Evangelical Church of Río de la Plata, the Spanish Evangelical Church, some branches of the Colombian Anglican Church and the Australian Anglican Church, the Episcopal Church, the Presbyterian Church, the Free Unitarian Congregation of Mexico, the Puertas Abiertas Christian Church, etc.
On the other hand, there are also Christian denominations that have adopted neutral positions, leaving the choice to the local congregations to decide on the issue. Likewise, within each Christian group there are LGBTI believers and supporters of LGBTI equality who they actively advocate for reform within their non-inclusive congregations, challenging the positions of their hierarchies.
In traditional Islamic jurisprudence, homosexual acts are prohibited and subject to different punishments (such as stoning or execution) in countries that apply sharia, depending on the situation and current of interpretation, for what the majority Islamic schools reject and repress all expression of LGBTI people. However, the current situation on the subject leaves room for the opening of some Muslim clerics, such as Tareq Oubrou (imam of Bordeaux), for whom neither neither the Koran nor the Sunna condemn homosexual practice, adding that homophobia is contrary to Islamic principles: according to Oubrou, although homosexuality “is not defended by Islam, homosexual Muslims are complete Muslims. The fact of stigmatizing, violating or harassing them is contrary to common ethics." in a personal capacity in 2005: «There is no reference in the Koran against homosexuality. We must discuss this issue among ourselves and understand that celebrating religious gay marriages would be the best response from Muslims living in the West to those who persecute homosexuals in the rest of the Muslim world." Some liberal imams, for their part, celebrate weddings. LGBTI in countries with full democratic systems; Ludovic-Mohamed Zahed, founder of the first inclusive mosque in Europe, maintains that "if the Prophet Muhammad were alive, he would marry homosexuals."
Within modern Jewish denominations the issue has been controversial and has given rise to debates and divisions. Traditionally, Judaism has understood homosexual male sexual relations as contrary to Torah, a view still held by Orthodox Jews. On the other hand, Reconstructionist Judaism and Reform Judaism do not hold this view and allow both homosexual relations and the marriage of same-sex couples. The Committee on Jewish Law and Standards of conservative Jews shared the same position as the Orthodox until December 2006, but since then has issued multiple opinions under its philosophy of pluralism; some sectors follow the orthodox position while others substantially liberalize the vision of homosexual sex and relationships, despite the fact that they continue to consider certain sexual acts as prohibited.
Some minority denominations of Hinduism also perform weddings, while in Buddhism most Western schools do, although in the Eastern ones it usually depends on the culture of each country. Among the new religious movements, the New Age group Eckankar, the Sōka Gakkai Buddhist branch (since 1995), the Raelian movement, and the British Quakers (since 2009) have ministers of worship who perform same-sex marriage, where this type of union is legal. recognized.
Scientology and Zoroastrianism oppose any form of homosexual activity, including marriage equality.
Public opinion
Surveys and studies on the subject have revealed a trend of increasing support for same-sex marriage in many countries around the world, often driven in large part by a generation gap. Surveys conducted in various democracies developed in the XXI century show a majority of the population supporting equal access to marriage, observing an increase in all age groups, without differentiating between political ideology, religion, gender, ethnicity and region. Likewise, in several countries it is observed that support increases significantly with higher levels of education and is also significantly higher among the younger generations, with a marked trend of continuous increase.
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