It was filed in El Salvador, which ranks 10 out of 17 nations in the Americas for friendliness toward LGBT people.
Salvadoran lawyer Herman Duarte didn’t set out to be an activist. While studying for a master’s degree in dispute resolution in Sweden five years ago, he was given the opportunity to write for one of El Salvador’s oldest newspapers. With the freedom to write about anything he wanted, he penned some 35 columns, a handful of which advocated gay rights. That may not sound like many, but in a country as conservative as El Salvador, Duarte’s views are nothing short of radical.
“It’s huge to hear someone complaining about gay rights,” Duarte tells Dose. In the staunchly Catholic country, he says homosexuals are viewed as prostitutes or sexual deviants who do not qualify for civil rights protections, and indeed 81% of Salvadorans reject marriage equality. The 1993 “Family Code” law defines marital and non-marital unions as a “stable union between a man and a woman.” It prohibits same-sex marriage and, redundantly, allows nullification of same-sex marriage contracts were they to be signed, which they’re not.
El Salvador and its neighboring Central American countries were ranked at the bottom of the Americas Quarterly Social Inclusion Index, an annual survey measuring how effectively countries in the region are able to serve their citizens?—?regardless of race, income level, creed or sexual orientation. El Salvador ranked 10 out of 17 in the Americas for friendliness towards LGBT people.
Duarte, 28, now specializes in international arbitration at Batalla Salto Luna, a respected law firm in Costa Rica. On October 29, Duarte began writing an argument to overturn portions of the Family Code. He started writing at 8pm. He didn’t stop until it was finished, at four in the morning.
“It was an internal call or a passion, an energy I never felt before that was so strong and so moving,” Duarte says. He compares it to what “moved Martin Luther King or Harvey Milk.” He had reservations about filing his claim, however.
“Why do I want to be in the middle of a … crossfire of a homophobic country where I already have a reputation of being in favor of gay rights?—?and do this? This will make people close doors in my face. It takes a big amount of courage, an amount of naïveté, because?—?you don’t know. El Salvadoran people get shot for five dollars.”
El Salvador is a country rife with violence, having survived a civil war that lasted twelve years. The instability created by mass immigration and deportation has led to an alarming rise in gang activity, leading to the country’s being labeled the “murder capital of the world.”
The foundations of equality
Duarte believes his claim rests on the fundamental right to equality of every human being.
“The human being is at the center of El Salvador’s constitution, which means that all men are created equally and that discrimination is prohibited on any basis,” Duarte said. He wants to see “sexual orientation” added to the list of prohibited discrimination.
“This means that if the State offers?—?through its constitution or by its laws?—?an institution, such as marriage, it must be accessible to everyone, notwithstanding their sexual orientation,” Duarte says. “Civil marriage should be ruled by laws, not by prejudice.”
El Salvador also in 1993 ratified the Inter-American Convention on Human Rights (ICHR), an initiative of the Organization of American States (OAS). This convention brought with it a huge store of cases to serve as legal precedents, which are binding to all signatory states. It also created a court where cases can be heard.
The protections in the constitution and the ICHR case law form the basis of Duarte’s unconstitutionality action against articles of the Family Code.
Duarte cites two previous cases that he believes provide legal foundations for his claim.
In Niñas y Riffo vs. Chile, transgender women used the OAS Convention to sue for the right to band together and form an association.
Another case, Last Temptation of Christ vs. Chile, dealt with the censorship of a movie about Jesus. In this case, the court upheld the right to free expression.
Pointing to these precedents, Duarte says, “Sexual orientation is an essential part of the dignity of the people. All persons are equal before the law and there can be no grounds for discrimination based on sexual orientation.”
Second, he adds that El Salvador is a democracy, “which underlies the idea of ??the secularity of marriage and the respect and promotion and non-regression of the rights of minorities.”
Third, Duarte points out that El Salvador has a responsibility “to adapt the legal system to be consistent with the Convention, as it can be inferred from ICHR case law.”
He filed the claim on November 11. It was reported by Salvadoran media and generated major support for Duarte on social media. But challenges lay ahead.
A challenge from the right
In 2009, Salvadoran religious leaders and right-wing political party ARENA embarked on an initiative to amend the country’s constitution to define marriage as a union only between a man and a woman. The initiative has fallen short of ratification multiple times, but remains before lawmakers in their current term, ending in 2018.
However, four days after Duarte filed his claim on November 11, ARENA requested that their amendment be studied and ratified, to protect “the family as an institution.” Salvadoran newspaper La Pensa Grafica reports that the request was made in answer to Duarte’s action. Duarte says ARENA’s request is a transparent attempt to push their amendment through quickly, before its “lack of technical and legal arguments” comes to light.
Duarte says, “The process defined by the Constitutional Procedures Law is that once a complaint is analyzed and admitted, it is given to the requested authority, in this case the Assembly, to present its arguments. They want to circumvent the process.”
Duarte says the constitutional reform aims to make LGBT people second-class citizens by forbidding same-sex marriage, expressly prohibiting adoption and enshrining non-recognition of same-sex marriages made in other countries.
“This is against the principles of equality and non-discrimination and a real threat to the rule of law,” he says.
Duarte amends his action
In response to ARENA’s constitutional request, which he calls “discriminatory,” Duarte amended his original claim and included a request that the Salvadoran Supreme Court rule on the constitutionality of ARENA’s reform. Duarte filed the amended claim on November 16.
“El Salvador is not a medieval state where there are only extremes,” he writes. “It is a country that has all the potential to modernize, and must start from the center of everything: the family.”
Duarte’s claim seeks “liberation from the restrictive discrimination that prevents thousands from realizing the promise of love with legal recognition, and that perpetuates violent discrimination by the majorities towards minorities in the democratic State.”
Duarte tells Dose the filing of his amended claim has already generated a flood of social media feedback?—?not all of it supportive. He says religious and conservative groups have sounded the call to take action to “protect the family.”
If Duarte’s action manages to be heard, and is successful, it could have regional implications for other Latin American countries bound by shared legal precedents under the OAS convention.