ADF International

Legal Matters

Alberto Duque v. Colombia

Date of most recent action: 26 Feb 2016

Inter-American Court of Human Rights admits case against Colombia for its laws on family


What’s at Stake:

  • The recognition of marriage as between one man and one woman
  • The sovereign right of a country to maintain its legal definition of marriage as between one man and one woman

Summary:

Like many countries in Latin America, and along with over 90 per cent of the world, Colombia legally defines marriage as between one man and one woman. Although this has been the case in Colombia for many years, providing the country with a foundation for flourishing family life, this view of marriage has recently come under attack.

After his same-sex partner’s death, Alberto Duque tried to obtain a survivor’s pension through the Colombian courts. They refused this due to the fact that such pensions are only awarded to those who were married to the deceased partner. Given that marriage in Colombia can only legally be between one man and one woman, Duque could not have been considered married to his partner.

Unhappy with the decision, Duque decided to take his case further by applying to the Inter-American Court of Human Rights (IACtHR). In October 2014, the court admitted Duque’s case against Colombia. Although Duque ostensibly based his claim on legitimate grounds – the protection of the family – in reality, it majored on the state’s alleged discrimination against him because of his same-sex sexual preference. In other words, it was a disguised attempt at forcing a redefinition of Colombia’s legitimate laws on marriage.

Duque contended that the state treated him unfairly because of its ‘limited and stereotyped’ view of the family, which excludes same-sex couples. He asserted that the state did not give him effective recourse for the supposed discrimination, and also claimed that through its actions, the Colombian judiciary had perpetuated stigmatization of same-sex couples.

The IACtHR is sympathetic to Duque’s views, because it aims to redefine the notion of family across Latin America to include same-sex couples. The Inter-American Commission on Human Rights (which, along with the IACtHR makes up the human rights protection system of the Organization of American States) is also clear in its view that Latin America has a narrow concept of the family that results in ‘discrimination’ against other ‘forms of families.’

Colombia has done nothing wrong, and should not be pressured into changing its laws on marriage. In fact, this case should have been considered moot. From 2007 to 2008 Colombia changed its legal framework to allow same-sex partners the right to all the benefits available to married people.  However, Duque insisted on following through his claim at the international court to impact the entire Latin American region.

On 26 February 2016 the Court released its judgment.  It reiterated that a lack of consensus among its Member States on the rights of sexual minorities did not mean the Court could avoid deciding on this issue, and thus held that there was a violation of the right to equal protection under Article 24 and non-discrimination under Article 1(1) of the American Convention.  Tragically, this case is a reflection of how the Court consistently overreaches its mandate by imposing an agenda over the democratic process and undermining the sovereignty of Member States.

Our Role in the Case

ADF International filed expert legal arguments before the Inter-American Court of Human Rights addressing the lack of due process and the transgression of the conventionality control.

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