Same-sex marriage in Spain
Same-sex marriage in Spain has been legal since July 3, 2005. In 2004, the Spanish Socialist Workers' Party (PSOE), led by José Luis Rodríguez Zapatero, ran for to the general elections with a program that included the commitment to "make marriage possible between people of the same sex and the exercise of all the rights that it entails." After the socialist victory in the elections and the formation of the government, and after much debate, On June 30, 2005, the law was approved that modified the civil code and allowed marriage between people of the same sex (and, as a consequence of this, other rights such as joint adoption, inheritance and pension). The law was published on July 2, 2005, and same-sex marriage was officially legal in Spain on July 3, 2005, making it the third country in the world to legalize it.
Despite the support of 66% of Spaniards for gay marriage, the processing of this law was accompanied by social mobilizations against, but also in favor of, the measure, which brought together thousands of people from all over Spain. While the supporters of the measure believe that true equality is only achieved if all couples are equated in the same legal figure, marriage, its opponents believe that the term "marriage" it should be reserved for the union of a man and a woman. The Catholic Church opposed this law, considering it an attack on the institution of marriage. Other associations also expressed concern about the possibility that homosexual people could adopt minors. After its approval, the Popular Party filed an appeal against the law in the Constitutional Court, which was resolved on November 6, 2012, seven years after its processing, with 8 votes in favor of the constitutionality of homosexual marriage and 3 against.
Some 4,500 same-sex couples were married in Spain during the first year of the law. between people of the same sex. On this issue, the Spanish Ministry of Justice determined that Spanish law allows a Spaniard to marry a foreigner —or for two foreigners legally residing in Spain to marry each other—, even when the national laws of those foreigners do not recognize the same-sex marriages.
History
In 1994, the urban lease law granted some limited rights to cohabiting couples for the first time, regardless of their sexual orientation. same-sex couples to register their union and obtain some administrative benefits. The first law was that of Catalonia, approved in 1998, which, however, did not allow joint adoption for homosexual couples. In 2000, Navarra approved a similar law, with the only opposition from Unión del Pueblo Navarro, which, however, did allow the adoption of children by homosexual couples. The Popular Party appealed the rule to the Constitutional Court, arguing that minors should be protected. At that time, Spanish law allowed single people to adopt minors. In this way, a homosexual couple could carry out a de facto adoption, but the member of the couple who was not the legal parent had no rights if the relationship ended or the legal parent died. Since the exclusive competence to regulate the forms of Marriage corresponds to the State by virtue of article 149.1.8ª of the Spanish Constitution, the aforementioned regional legislation could not grant said couples the status of marriage. At the national level, there had been several attempts since 1994 to approve a law for couples in fact, they also affected homosexual couples, without success. Until September 2001, legislative efforts had focused on creating a law on common-law couples that would equate the rights of such couples, including homosexual ones, with marriages. On that date, the first formal proposal was presented in the Cortes Generales of the Kingdom to modify the Civil Code and allow marriage between people of the same sex.
On June 30, 2004, the new Minister of Justice, Juan Fernando López Aguilar, announced that the Congress of Deputies had provisionally approved a bill to extend the right to marry to same-sex couples. This would fulfill a promise made by President Zapatero on the day of his inaugural speech.The minister also announced two amendments, introduced by Convergencia i Unió; the former introduced legal status for heterosexual and homosexual domestic partners, while the latter allowed transgender people to legally change their name without the need for prior surgery.
The bill on homosexual marriage was approved by the Council of Ministers on October 1, 2004. It was sent to the Cortes Generales on December 31, and approved by Congress on April 21, 2005. However, on June 22, the text was rejected by the Senate, in which the main opposition party (Partido Popular) held the majority of the seats. The text returned to Congress, which lifted the Senate's veto and approved the text finally on June 30, 2005, with 187 votes in favor, 147 against and four abstentions. With the final approval of the law on July 2, 2005, Spain became the third country in the world to legalize same-sex marriage after the Netherlands and Belgium; Canada would do so a few days later.
On July 11, 2005, the first wedding between two people of the same sex, Emilio Menéndez and Carlos Baturin, who had lived together for more than thirty years, was held in Tres Cantos (Madrid). The first marriage between women it was held in Barcelona eleven days later. Despite all these steps to eliminate existing discrimination, there was a legal ruling: children born within a marriage between lesbian women could not be legally recognized by the non-biological mother, who He then had to initiate expensive and long adoption procedures, something that does not happen in heterosexual marriages, where the father only needs to recognize the child without the need for further requirements. On November 7, 2006, the Spanish Government modified the Assisted Reproduction Law, allowing the non-biological mother to recognize children born within the marriage between women.
Parliamentary processing of Law 13/2005
Background
In the 2004 general elections, the Spanish Socialist Workers' Party announced, as part of its electoral program, the commitment to "make marriage possible between people of the same sex and the exercise of all the rights it entails, on an equal footing conditions with other forms of marriage, to ensure the full legal and social equality of lesbians and gays". In the inauguration speech, the new president of the Government, José Luis Rodríguez Zapatero, advanced that his Government would present a bill that, in accordance with the electoral promise, extend the right to marry to persons of the same sex, including the right to adoption.
The Minister of Justice, Juan Fernando López Aguilar, announced on June 30, 2004 before the Congress of Deputies the approval of a draft law to reform the Civil Code, in order to eliminate the existing limitations and thus achieve that the marriage was independent of the sex of the contracting parties. The bill was studied by the Council of State, which, despite recognizing the inadmissibility of the existing discrimination against homosexual people, critically informed about the extension of marriage to same-sex couples, pointing out that said extension was not coming required by the Constitution and the same result (i.e. non-discrimination) could be achieved through other means.
Approval by the Congress of Deputies
Despite the negative report from the Council of State, the Government presented the bill to the Congress of Deputies on October 1, 2004. All parliamentary groups, except the Partido Popular and the representatives of Unió Democràtica of Catalonia, were in favor of this reform. On April 21, 2005, the Congress of Deputies approved the bill, with 183 votes in favor, 136 against, and three abstentions.
Senate veto
In accordance with constitutional provisions, the text approved by the Congress of Deputies was sent to the Senate for debate and (where appropriate) approval, amendment or veto. On June 21, 2005, certain experts summoned at the proposal of the parliamentary groups with a presence in the Senate appeared in the Senate to give their opinion on the bill. The opinion of the experts was diverse: some maintained that the adoption of children by homosexual couples has no effect on the children, beyond their greater tolerance towards homosexuality. However, the psychiatrist Aquilino Polaino (convened as an expert by initiative of the Popular Party) described homosexuality as pathology and "emotional disorder," expressing, among other statements that sparked controversy, that "many homosexuals have a history of rape since childhood" or that gays and lesbians generally come from families with "hostile, alcoholic and distant" parents; and "overprotective" with male children and "cold" with the women. PP leaders later disassociated themselves from those statements by Aquilino Polaino.
The Senate vetoed the text sent by the Congress of Deputies. The veto proposal was presented by the Popular Party (PP), which maintained an almost absolute majority in the Senate, and senators from the Unió Democràtica de Catalunya (a member of the CiU coalition) and approved by 131 votes (126 PP votes, four from Unió and one from the Aragonese Party) against 119 (those from the rest of the groups). Two CiU senators abstained. As a consequence of this veto, the reform was returned to the Congress of Deputies.
Congressional ratification and entry into force
On June 30, 2005, the text vetoed by the Senate was voted on again and approved by an absolute majority of Congress, which, in accordance with constitutional provisions, lifted the Senate's veto. The veto was raised with the vote of 187 deputies (those of the PSOE, ERC, Nafarroa Bai, Izquierda Unida-Verdes, PNV, BNG, CC, CHA and two deputies of Convergència Democràtica de Catalunya, as well as with the vote of Celia Villalobos, deputy of the PP). Against lifting the Senate's veto, 147 deputies (PP and Unió Democràtica de Catalunya) voted. There were also four abstentions. The lifting of the veto meant its final approval as law.
Law 13/2005 was sanctioned by the King, Juan Carlos I, on July 1, 2005. The media asked Juan Carlos I if he would ratify the law that, at the time of the question, was was debating in the Cortes Generales. The king replied that he was the king of Spain and not the king of Belgium, referring to King Baudouin I, who at the time did not sign the Belgian law legalizing abortion. Indeed, Juan Carlos I sanctioned Law 13/2005, in compliance with the constitutional provisions. Law 13/2005 was published in the Official State Gazette on July 2, 2005, and entered into force the following day, 3 July 2005.
Content of the reform
Law 13/2005 amends the Civil Code regarding the right to marry. In particular, this reform adds a second paragraph to the current article 44 of the Civil Code, keeping the first paragraph intact:
- "Man and woman have the right to marry under the provisions of this Code.
- Marriage will have the same requirements and effects when both spouses are of the same or different sex. »
The remaining modifications of the Civil Code made by Law 13/2005 are aimed at replacing the expressions "husband and wife" with "spouses", and "father and mother" with "parents". As a consequence of this reform, Two women or two men can get married, and that marriage has the same nature, requirements and effects as the one that could be contracted, and after the reform they can continue contracting, a woman and a man.
These effects extend to all matters in which the marriage is relevant: inheritance law, right of residence, adoption of the spouse's children, tax effects, right not to testify against the spouse, food, separation, divorce, etc.
Effects and remedies against Law 13/2005
Marriage Civil Unions Limited domestic recognition (in fact) Limited recognition of unions in other countries No recognition Marriage prohibited for same-sex couples
International context
Spain was the third country in the world, after the Netherlands and Belgium, to pass laws allowing same-sex marriage. In the state of Massachusetts, this result was not achieved by passing a law in Parliament, but as a result of legal proceedings. Similarly, as a result of various judicial procedures, shortly after the approval in Spain, Canada approved legislation that allows marriage between people of the same sex.
Residency issues
Shortly after gay marriage became legal, doubts arose about the legal status of marriage with people from other countries when the marriage request of a Spaniard and an Indian in Barcelona was denied because India does not allow this type of marriage of link. However, on July 22, 2005, another judge in Catalonia authorized the marriage between a Spanish woman and an Argentine woman, giving preference to the right to marry over the fact that Argentina did not yet allow these unions.
On July 27, 2005, the Chamber of Prosecutors issued a statement in which it was of the opinion that the marriage of Spaniards with people of the same sex from other countries could be carried out even if the latter did not recognize homosexual marriage. It would be valid according to Spanish law, but it would not imply automatic validity in the country of origin of the foreign spouse.
In accordance with the instructions of the Ministry of Justice (General Directorate of Registries and Notaries), Spanish consulates abroad can process marriage requests between people of the same sex. One of the contracting parties is required to be a citizen Spaniard residing in said consular demarcation. However, the marriage can only be celebrated at the consulate if the country in question authorizes said marriages (for the moment, the Spanish consulates in Argentina, Boston, Brussels, Amsterdam, The Hague, Toronto, Montreal, Ottawa, Cape Town, Pretoria and Stockholm). In all other cases, the spouses must marry in Spanish territory. Two foreigners who do not have legal residence in Spain cannot marry, but if both do, they can.
Resources
On July 21, 2005, a judge from the city of Denia denied the request for marriage to a couple of women and presented a question of unconstitutionality on homosexual marriage before the Constitutional Court under article 32 of the Constitution that contains the phrase "Man and woman have the right to marry with full legal equality". In August 2005, a judge in Gran Canaria stopped the processing of three marriage files for same-sex couples and presented a new question. In December 2005, the Constitutional Court rejected both questions for processing because those in charge of the Civil Registry do not perform judicial functions in this type of files prior to civil marriage, as they are integrated into an administrative structure under the of the Ministry of Justice, so they are not empowered to promote questions of unconstitutionality. by refusing to marry a homosexual couple, and sentenced to pay a fine of 305 euros, at the same time that he received a notice that he would incur a minor offense if he persisted with his actions. She has described this as part of the "device government propaganda".
On September 30, 2005, 72 Popular Party deputies filed an appeal for unconstitutionality before the Constitutional Court against the aforementioned reform of the Civil Code, causing divisions within the party itself. The appeal was admitted for processing by the Court Constitutional. The verdict was made public on November 6, 2012, seven years after it was processed, with 8 votes in favor of gay marriage and 3 against.
On February 27, 2007, the Spanish Family Forum presented a popular legislative initiative signed by 1.5 million people so that marriage consisted solely of the union of a man and a woman, effectively prohibiting marriage between people of the same sex. The initiative was rejected by the Congress of Deputies.
Supreme Court Judgment
In May 2009, the Supreme Court denied judges the opportunity to oppose gay marriage. In response to the claim made by a judge from Sagunto to be exempted from celebrating same-sex marriages because their Catholic beliefs prevented them from doing so, the Contentious Chamber affirmed that judges cannot allege reasons of conscience because they are subject to the principle of legality.
Social Reactions
A poll conducted by the Center for Sociological Research in June 2004 indicated that 66% of Spaniards supported same-sex marriage. A poll by the Instituto Opina one day before the approval of the law indicated that 62.1% of Spaniards supported homosexual marriage, and 49.1% supported adoption by homosexual couples. Another survey by the Instituto Opina, taken nine months after the the approval of the law, indicated that 61% of Spaniards supported the Government's decision.
In the same vein, during the Gay Pride Day party held on July 2, 2005 in Madrid (coinciding with the publication of the reform in the Official State Gazette), thousands of demonstrators (97,000 attendees according to the police, 2,000,000 attendees according to the State Federation of Gays, Lesbians and Transsexuals, led by Beatriz Gimeno) expressed their support for the law, considering it an unprecedented advance in Spain. The President of the Government expressed the same line, José Luis Rodríguez Zapatero, in the final debate on Law 13/2005, when stating that its approval was nothing more than an act of decency. Mariano Rajoy, president of the main opposition party, the Popular Party, accused Zapatero of divide society with this law.
In the opposite direction, on June 18, 2005 (during the parliamentary process of the law), a massive demonstration called in Madrid by the Spanish Family Forum, an organization led by Benigno Blanco (former Secretary of State in the of José María Aznar), as well as by other associations (including some Catholic ones), summoned hundreds of thousands of people to oppose the equating of unions between people of the same sex to marriages, under the slogan “Family does matter, for the right to a mother and a father, for freedom."
The Government Delegation in Madrid counted 166,000 attendees; the newspaper El País gave approximately 200,000; the conveners estimated the participation at 1,500,000 people, while the police —a reference in this type of controversies— did not want to give their figures. The demonstration was made up of some 5,000 associations that, before and after the approval of the law, They called several demonstrations in Madrid against its approval.
This demonstration was supported by the Spanish Catholic Church, with the assistance of eighteen bishops and Cardinal Antonio María Rouco Varela, Archbishop of Madrid and former president of the Spanish Episcopal Conference. The demonstration was also supported by the Popular Party, with the assistance of prominent leaders, although its president Mariano Rajoy did not take part in it. Even so, the Popular Party had to listen to some dissonant voices in its own ranks, such as that of the coordinator of the PP Gay and Lesbian Group, Javier Gómez, who pointed out that, if freedom of vote had been allowed, 42 of the popular deputies would have declared themselves in favor of the law. He also requested that his party partner and mayor of Madrid, Alberto Ruiz-Gallardón, marry him to his partner, a fact that took place a few weeks later despite criticism from the Archdiocese of Madrid and numerous popular deputies.
The Spanish bishops pointed out that the government, by equating heterosexual and homosexual couples, devalued the meaning of the term marriage. The president of the Holy See's Pontifical Council for the Family, Cardinal López Trujillo, expressed his absolute rejection before the new law and called for the conscientious objection of Catholic officials when processing these marriages, even if this could cost them their jobs. The Spanish Family Forum expressed its concern about the possibility that homosexual couples could adopt and raising minors, arguing that adoption is a right for the minor, not the parents.
LGBT associations countered that adoption by homosexual couples had been existing de facto for a long time in Spain, as many couples were raising children adopted by one of the partners. Adoption by homosexual couples was already legal in the Basque Country, Navarra, Asturias, Aragon and Catalonia before the legalization of homosexual marriage allowed adoption at the national level. These associations also pointed out that there is no scientific basis for the argument that the sexual orientation of the parents implies problems in the development of minors. This is officially supported by the Official College of Psychologists of Spain, which also indicates that homosexuality is not a pathology.
Statistics and post data
On September 4, 2005, the conservative newspaper La Razón published data from 273 of the 430 Civil Registry Offices, indicating that 24 same-sex marriages had occurred (as of that date). of the estimated 35,000. The newspaper argued that these data contradicted the justifications of the Government and LGBT activists that this law would benefit 5-10% of the population.
On December 27, 2005, the Minister of Justice announced that 327 marriages (90 in Madrid, 63 in Valencia, 35 in Barcelona and 18 in Seville) had been registered as of December 5, 2005 in the 200 civil registries computerized (out of 437 existing in Spain). In the rest of the country, same-sex marriage had not been differentiated from heterosexual marriages when counting the total number of civil marriages.
In early March 2006, Pedro Zerolo, a member of the PSOE Federal Executive, announced that more than 1,000 same-sex couples had married. 800 marriages were registered in the computerized areas (approximately half of the country) and another 200 were estimated in the rest. Zerolo also said that one in ten marriages in Spain were between people of the same sex. of the law, 50 adoption petitions were made and 3 divorces were consummated.
On June 27, 2007, the General Directorate of Registries and Notaries (DGRN) of the Ministry of Justice announced that 3,340 couples had been married since the law came into force, but acknowledging that this figure may be "one third of reality", since only the data from the 356 computerized records are included and the data from the more than 7,000 justices of the peace or the Basque Country are not counted. Thus, according to the Ministry of Justice, of 3,340 marriages between homosexuals, 2,375 have been among men and 965 among women. Madrid continues to be the community with the highest number of weddings, with 1,060, followed by Catalonia, with 871, Andalusia, with 399, and the Valencian Community, with 263, the Balearic Islands registered 116 marriages; Asturias, 101; Castilla y León, 89; Aragon, 86; Canaries, 83; Region of Murcia, 61 and Castilla-La Mancha, 56; Extremadura, 54; Galicia, 31; Cantabria, 28; Navarra, 25 and La Rioja, 13.
According to the National Institute of Statistics (INE), until the end of 2011, 23,523 same-sex marriages were celebrated: 1,275 in 2005, 4,574 in 2006, 3,250 in 2007, 3,549 in 2008, 3,412 in 2009, 3,583 in 2010 and 3,880 in 2011. By autonomous communities, those that celebrated the most same-sex marriages in 2009 were: Catalonia, with 895 weddings (3.24% of the total number of marriages in the community); Madrid, with 547 (2.77%); Andalusia, with 455 (1.35%); Valencian Community, with 427 (2.34%); and the Canary Islands, with 224 (3.70%).
The figure increased to more than 49,000 same-sex marriages in 2020.
| Year | Between men | Women | Total
same sex | Total
marriages | % between different marriages
and same sex |
|---|---|---|---|---|---|
| 2005(since July) | 914 | 355 | 1269 | 120 728 | 1.05 |
| 2006 | 3000 | 1313 | 4313 | 203 453 | 2.12 |
| 2007 | 2141 | 1052 | 3193 | 201 579 | 1.58 |
| 2008 | 2051 | 1143 | 3194 | 194 022 | 1.65 |
| 2009 | 1984 | 1098 | 3082 | 174 062 | 1.77 |
| 2010 | 1955 | 1238 | 3193 | 167 247 | 1.91 |
| 2011 | 2073 | 1467 | 3540 | 159 798 | 2.22 |
| 2012 | 1935 | 1520 | 3455 | 165 101 | 2,09 |
| 2013 | 1648 | 1423 | 3071 | 153 375 | 2.00 |
| 2014 | 1679 | 1596 | 3275 | 159 375 | 2.05 |
| 2015 | 1925 | 1813 | 3738 | 165 172 | 2.26 |
| 2016 | 2188 | 2132 | 4320 | 171 023 | 2.53 |
| 2017 | 2323 | 2314 | 4637 | 168 989 | 2.74 |
| 2018 | 2358 | 2512 | 4870 | 162 743 | 2.99 |
| 2019 | 2492 | 2649 | 5141 | 161 389 | 3,19 |
| 2020 | 1504 | 1685 | 3189 | 87 481 | 3,65 |
| TOTAL | 32 170 | 25 310 | 57 480 | 2 615 537 | 2,20 |
On July 25, 2007, the BBVA Foundation released its report Social Portrait of Spaniards, which shows that 60% of Spaniards accept same-sex marriage. Support is majority among young people, between 15 and 34 years old (75%), people with higher education (71%), those who do not adhere to a religion (75.5%), and those who identify with the left and the center-left (71.9%). However, only 44% are in favor of adoption by homosexual couples, compared to 42% who are opposed.
A 2011 survey conducted in Spain revealed that 56% of citizens are in favor of same-sex unions being called "marriage" and of being able to adopt children.
Religious Unions
All monogamous religious unions (blessings or marriages) that are celebrated by communities registered in the Register of Religious Entities of Spain are recognized for civil purposes, thus obtaining official recognition by the Spanish State. Within the churches of Spanish Protestantism they have begun to debate and allow, from the 21st century, different types of blessings of same-sex unions. The Spanish Evangelical Church, one of the two historic Protestant churches in the country, approved in its 2016 synod the “Declaration of Mamré”, which called for a pastoral care of welcoming people homosexuals and their families, avoiding invisibility and working to support diversity.