The Inter-American Court of Human Rights called last week for the recognition of same-sex marriage and of proclaimed “gender identity” as a protected category for nondiscrimination under the American Convention on Human Rights.
Although the decision is not binding, 20 countries throughout the Americas have accepted the jurisdiction of the court, and will now be pressured to implement its decision.
The 20 countries are Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, the Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, and Uruguay.
Same-sex marriage is already legal in some of those countries, including Argentina, Brazil, Colombia, and Uruguay, and others recognize civil unions, but still others do not recognize either and will be expected to change their laws.
The case originated from Costa Rica, which requested an advisory opinion from the court on whether its domestic law violated international law, as it does not facilitate name changes based on gender identity, nor recognize patrimonial rights of same-sex partnerships.
Advisory opinions are not even binding on the country that asked the question, let alone the other 19 nations that have accepted the court’s jurisdiction. However, the court ignored this legal reality and called upon the countries to issue temporary decrees recognizing same-sex marriage until new legislation can be enacted by those countries.
The court has no authority to order such a thing, and the decision goes against the clear wording of the American Convention on Human Rights, as well as several national constitutions. However, the court’s decision is just the latest example of judicial activism, which stretches back more than a decade.
The court is tasked with interpreting the American Convention on Human Rights and operates within the broader Organization of American States framework.
Faced with stubbornly conservative member nations that are slow to follow the legal and cultural liberalism flowing out of Canada, the U.S., and much of Western Europe, the court has taken it upon itself to force its own liberal agenda on a reluctant region.
For example, in Atala v. Chile (2012), the court held that member nations had to recognize “sexual orientation” as a protected category of nondiscrimination, despite no reference to such a term in the American Convention on Human Rights.
Similarly, in Murillo v. Costa Rica (2012), the court held that a ban on in vitro fertilization violated the American Convention—even though the convention explicitly recognizes the right to life “from conception.” How did the court do this? It reinterpreted when life begins—not at conception, but at implantation.
It’s a great irony that the court was established in part to promote human rights and democracy in countries that were moving out of dictatorship, and today it has become one of the greatest threats to democracy in the Americas.
Yet, despite such blatant judicial activism—seven unelected judges, legislating from the bench for 20 countries—the court has largely operated under the radar for many years.
However, there are signs the tide may be turning. In 2017, nearly 700 legislators from the Americas signed the Mexico City Declaration, which, among other things, calls for an end to the court’s activism.
Forming the Hemispheric Congress of Parliamentarians, these legislators committed themselves to monitoring the Inter-American Court and ensuring that it stays within its mandate and becomes a credible court that respects the rule of law.
There are two possible outcomes: either the countries within the Americas will reject the court’s activism and uphold their own national democratic orders, or the Inter-American Court will become even more emboldened, overriding more and more national laws over the express wishes of the people.
Only time will tell whether the recent advisory opinion provokes the former, or becomes just another illustration of the latter.