Same-sex marriage in Spain

From Wikipedia, the free encyclopedia

Same-sex marriage
Performed nationwide in
Netherlands (2001) Belgium (2003) Spain (2005) Canada (2005) South Africa (2006)
Performed statewide in
Massachusetts, USA (2004)
Foreign same-sex marriage recognized in
Israel (2006)
Debate in other countries and regions
Aruba Australia Austria China Estonia France Ireland Italy Latvia (no debate) Lithuania New Zealand Portugal Romania Sweden Taiwan United Kingdom United States: CA, CT, MD, NY, NJ, OR, WA
See also
Civil union Registered partnership Domestic partnership Timeline of same-sex marriage Listings by country
This box: view • talk • edit

In 2004, the new Socialist government of Spain began a campaign to legalize same-sex marriage in Spain, in addition to adoption by same-sex couples. It was passed by the Cortes Generales (Spain's bicameral parliament made up of the Senate and the Congress of Deputies) on 30 June 2005 and officially published on 2 July 2005. Same-sex marriage officially became legal on Sunday, 3 July 2005.

1 History
2 References
3 See also
4 External links

[edit] History

During the 1990s, several of the city councils and autonomous communities of Spain had opened registers for civil unions that allowed unmarried couples of any sex to enjoy some local benefits. Also, Spanish law allowed single people to adopt children. Thus, a same-sex couple could de facto adopt a child, but the partner who was not the legal parent had no rights in case of breakup or death. Same sex marriage weren't legalised in Autonomous Comunities because only the Spanish State has the power to legislate about marriage.

On 30 June 2004, Spanish minister of justice Juan Fernando López Aguilar announced that the Spanish Congress of Deputies had provisionally approved a government plan for legislation to extend the right to marriage to same-sex couples. This would fulfil a promise made by Prime Minister José Luis Rodríguez Zapatero the day of his inauguration.

At the same time, Minister López announced a proposition (introduced by the Convergència i Unió party) to introduce legal status for both opposite- and same-sex common-law unions (parejas de hecho, "de facto unions"), and another to permit transgendered people to legally change their name and sex designation without the requirement of surgery.

The bill on same-sex marriage was approved by the Cabinet on 1 October 2004. It was submitted to Parliament on 31 December ^[1]^[2], and passed by the lower house on April 21, 2005 ^[3]^[4]. However, the bill was rejected^[5] by the Senate, where the opposition People's Party holds a plurality of the seats, on 22 June, 2005. It then returned to the lower house, which has an override power at its disposal, and on 30 June, 2005, the lower house gave final approval to the bill with 187 yes, 147 no and four abstentions.

With the final approval of the law on July 2—including royal assent and publication in the Boletín Oficial del Estado—Spain became the third country in the world to formally legalize same-sex marriages nationwide, after the Netherlands and Belgium.^[6] Canada's federal same-sex marriage legislation passed its final reading in the House of Commons in late June, 2005. It would receive Royal Assent and become law in late July, 2005.

The first same-sex wedding took place eight days after the approval of the law. It was celebrated in the council chamber in the Madrid suburb of Tres Cantos. Carlos Baturin and Emilio Menéndez were the first same-sex couple to be legally married in Spain.

[edit] Residency issues

Shortly after the law was passed, doubt arose about the legal status of marriage to non-Spaniards, when a Spaniard and an Indian national living in Catalonia were denied a marriage license on the grounds that India did not permit same-sex marriage.^[7]

However, on July 22 and also in Catalonia, another judge married a Spanish woman with her Argentinian-national partner. This judge disagreed with his colleague’s decision and gave preference to the right of marriage over the fact that the laws of the country of origin of the other woman don't allow same-sex marriage.

On 27 July, the Junta de Fiscales de Sala, a body of lawyers that advises the national attorney general's office, issued an opinion that LGB Spaniards can marry foreigners from countries that do not permit same-sex marriage.^[8] This marriage would be valid according to Spanish law, but didn't imply automatic validity according to the foreigner's national law. A ruling published in the Official State Bulletin stated:

a marriage between a Spaniard and a foreigner, or between foreigners of the same sex resident in Spain, shall be valid as a result of applying Spanish material law, even if the foreigner's national legislation does not allow or recognize the validity of such marriages. ^[9]

According to the instructions provided by the Ministry of Justice (Dirección General de Registros y Notariado), Spanish Consulates abroad are entitled to carry the preliminary tramitation for a same-sex marriage. At least one of the members of the couple must be a Spanish citizen, resident in the Consular demarcation. However, the marriage itself could only take place at the Consulate if local laws recognise same-sex marriages (e.g. Spanish Consulates in Boston, Brussels, Amsterdam, Toronto, Montréal and Ottawa, so far). In other cases, the partners must marry in Spanish territory.

Two non-resident foreigners cannot marry in Spain when visiting. At least one of the partners is required to be a Spanish citizen. Canada is the only country that allows non-resident, foreign same-sex couples to marry; Belgium and the Netherlands only marry their own residents or citizens.

[edit] Opposition court challenges

On July 21, 2005, a judge from the city of Denia refused to issue a marriage licence to a lesbian couple. The judge also filed a constitutional challenge against the same-sex marriage law with the Spanish Constitutional Court. The judge bases the challenge on article 32 of Spain's constitution that contains the phrase "Men and women have the right to contract marriage with full juridical equality." In August 2005, another judge from Gran Canaria refused licenses to 3 same-sex couples and mounted another constitutional challenge.^[10] In December 2005, the Constitutional Court rejected both challenges owing to those judges' lack of standing to file the said challenges.^[11] The conservative People's Party decided to initiate a separate constitutional challenge, a decision that caused divisions inside the party.

[edit] Marriage numbers

On September 4, 2005, the conservative newspaper La Razón published data from 273 out of 430 Offices of Civil Registry that said a total of 24 same-sex couples had married to date out of over 35,000 marriages. The paper argued that the data contradicted the justifications of the government about the law being a main priority of the legislature based on popular demand, and also the claims from gay rights activists that the law would benefit 5 to 10 percent of the population. On December 27, 2005, news agency Servimedia reported that 327 same-sex marriages (among them 90 in Madrid, 63 in Valencia, 35 in Barcelona and 18 in Seville) had been registered by December 5 in the 200 civil registries that were computerized at the time (out of a total of 437 civil registries in the country). Which means that in the rest of the country (approximately half) same-sex marriage and heterosexual marriage were not differentiated when counting the total number of civil marriages.

In March 2006, Pedro Zerolo, a senior government official, announced that more than 1,000 same-sex couples had married. 800 marriages were recorded in the fully computerized areas (about half the country) and at least 200 were estimated in the rest of the country. Zerolo also said that 10% of all marriages in Spain were between same-sex couples.^[12] By June 2006, around 1,300 same-sex couples had married from a total of 210,000 marriages, establishing a ratio of 0,6%. ^[13] The first same-sex divorce was also initiated that month.^[14]

[edit] Reactions

A poll by Spain's Centre for Sociological Investigations published in April 2005 said 66% of Spaniards favoured legalizing same-sex marriage.^[15] Another poll taken by Instituto Opina a day before the bill passed placed support of the same-sex marriage bill at 62.1% and support of adoption by same-sex couples at 49.1%.^[16] A Instituto Opina poll taken nine months after the bill passed said 61% agreed with the government's decision.^[17]

However, the bill's passage was met with concern by Catholic authorities, including Pope John Paul II, who feared a weakening of family values, and his successor Pope Benedict XVI. Gay rights supporters argued that while the Catholic Church also formally opposed opposite-sex, non-religious marriage, its opposition was not as vocal; the Church did not object to the marriage of Felipe, Prince of Asturias to Letizia Ortiz, who had divorced from a previous civil marriage.

Prime Minister Zapatero has responded to Catholic criticisms by saying:

These are decisions for freedom, to allow free people to choose freely. They are not meant to attack any moral position, since they belong to the civil realm, determined by the legitimate will of the majority of the citizens. ... Spain is a democracy whose sovereignty resides in the Parliament, which passes laws on social life. I deeply respect all citizens' religious convictions, and it's true that there are many Catholics in Spain. However, while respecting the best spirit of the Church's doctrine, we must make the difference between civil space and the intimate space of personal conviction. The worst occurs when the two are confused.

Protestors against the measure claim to have rallied 1.5 million people against what they consider an attack on the traditional family; official sources counted 160,000 at the same event. Two weeks after this rally, and coinciding with the Gay Pride Day, 2.0 million people marched in favour of the new law for gays and lesbians, organizers claimed (official sources accounted 97,000). ^[18]

Opponents to the bill also claimed that the government, by equalizing same-sex and opposite-sex couples, weakened the meaning of matrimonio (marriage), that they say is defined as a couple of different sexes. Many also express concern over the possibility of gay couples adopting and bringing up children, and argue that adoption is not a right for the parents, but for the adopted.

Gay associations reply that adoption by same-sex couples had been existing de facto for a long time in Spain, since many couples were bringing up minors adopted by one of the partners. Adoption by same-sex couples was already legal in Navarre, Asturias, Aragon, the Basque Country, and Catalonia, even before the same-sex marriage law allowed these adoptions to be legal nationwide.

It should be mentioned that in spite of all these steps towards an equal treatment, up to now there was still a legal flaw. Children born within a lesbian marriage (from whatever means) could not be legally recognized so far by the non-biological mother, who still had to undergo a time-and-resource-consuming process of adoption. This right is granted to heterosexual couples (married or not), where the male partner who is not a biological father can recognize these children without further questioning. On March 17th, 2006, the Spanish Government promised to amend the Law to grant the same right to lesbian marriages ^[19]

On November 7th 2006, the Spanish Government amended the law on assisted reproduction, allowing the non-biological mother to recognize children born within a lesbian marriage ^[20]